
    PAYNE v. STATE.
    (No. 11568.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    Criminal law <9=576(8)— Statute authorizing discharge for failure to return indictment at next term after confinement in jail held inapplicable after indictment at subsequent term (Code Cr. Proc. 1925, art. 576).
    Code Cr. Proc. 1925, art. 576, providing that defendant shall be dismissed where detained in custody to answer for'criminal accusation, and indictment is not presented at next term of court, held inapplicable, where he did not seek discharge until indictment was returned by grand jury át subsequent term, though it would have been controlling if he had sought such discharge on adjournment of first succeeding term.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    J. D. (Shorty) Payne was convicted of rape of a female. under the age of consent, and he appeals.
    Affirmed.
    J. W. Culwell, of Amarillo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.'

Conviction is for rape of a female under the age of consent, punishment being 25 years in the penitentiary.

Prosecutrix was not quite 15 years of age at the time the offense was committed. No good purpose can be accomplished by setting out the evidence in detail. It is sufficient to say that it amply supports the verdict.

Appellant was arrested on the 4th day ot January upon a warrant from the justice of the peace acting as magistrate. Examining trial was waived, and in default of bail appellant was confined in jail. The next term, of the district court convened on the 24th day of January. That term of court adjourned on the 2d day of April without indictment háving been returned against appellant, and no order of any kind was made relative to his case. Another term of court convened on the 24th day of April and the grand jury for that term returned the indictment upon which appellant was tried. Upon call of the case appellant filed a motion to dismiss the prosecution, invoking the application of article 576, O. O. P. 1925, which reads as follows:

“When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.”

If appellant had sought discharge from custody upon adjournment of the first succeeding term of the district court after having been remanded by the magistrate, the provisions of article 576 would have been controlling, but it has no application after indictment is returned although by a grand jury at a subsequent term of court.

No other question is presented for review.

The judgment is affirmed. 
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