
    KECK v. STATE.
    (No. 6437.)
    (Court of Criminal Appeals of Texas.
    Nov. 2, 1921.)
    I. Rape <@=>23 — ! ndictment charging carnal knowledge of female under 15 years of age properly sustained.
    Court properly refused to quash an indictment under Acts 35th Leg. (1918) 4th Called Sess. c. 50, making penal carnal knowledge of female under the age of 18 years with or without her consent, which stated the age of the female to be under 15 years.
    a. Criminal law <@=»678(l) — Court erred in not requiring state to elect upon which act it would demand conviction.
    In prosecution for statutory rape under Acts 35th Leg. (1918) 4th Called Sess. c. 50, where evidence tended to show that defendant had carnal knowledge of prosecutrix twice upon, the same day, an hour or more intervening, court erred in not granting a motion to compel the prosecution to elect upon which of the acts it would demand a conviction.
    Appeal from District Court, Montague County; C. R. Pearman, Judge.
    Chris Keck was convicted of rape, and appeals.
    Reversed and remanded.
    Alcorn & Jameson, of Montague, for appellant.
    ■ R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The judgment condemns appellant to confinement in the penitentiary for a period of five years for the offense of rape.

The statute defining the offense makes penal carnal knowledge of a female under the age of 18 years, with or without her consent. Penal Code, art. 1063 (Acts 35th Leg., 4th Called Session, c. 50). In the indictment, the age of the female was charged to have been under 15 years. There was no error in refusing to quash the indictment. Young v. State, 230 S W. 414. According to the state’s proof, the female was under 15 years of age, was not the wife of the’ appellant, and he had carnal knowledge of her twice upon the same day, an hour or more intervening between the two acts proved. There was also testimony of acts of intercourse on former occasions.

The appellant, at the conclusion of the testimony, by motion, sought to compel the prosecution to elect upon which of the acts it would demand a conviction. The denial' of this request is made the subject of complaint, and is properly before us for review. Each act of carnal knowledge was a separate offense. The several acts were not parts of a continuing offense, as in adultery. Batchelor v. State, 41 Tex. Cr. R. 501, 55 S. W. 491, 96 Am. St. Rep. 791; Powell v. State, 47 Tex. Cr. R. 155, 82 S. W. 516, 122 Am. St. Rep. 683.

The court instructed the jury to convict if, on or about the 20th day of August, 1918, appellant had carnal knowledge of the pros-ecutrix, thus definitely authorizing a conviction upon either of the acts proved. Upon similar facts in the Bader case, 57 Tex. Cr. R., 293, 122 S. W. 555, it is said:

“Under all the authorities, which are both numerous and uniform, this motion should have been granted.”

See Batchelor v. State, 41 Tex. Cr. R. 501, 55 S. W. 491, 96 Am. St. Rep. 791; Powell v. State, 47 Tex. Cr. R. 155, 82 S. W. 516, 122 Am. St. Rep. 6S3; Stone v. State, 45 Tex. Cr. R. 91, 73 S. W. 956. See, also, Golden v. State, 72 Tex. Cr. R. 23, 160 S. W. 957; Mora v. State, 74 Tex. Cr. R. 26, 167 S. W. 345; 1 Wharton’s Crim. Proc. § 343; 1 Bishop’s Crim. Proc. § 559; 33 Cyc. p. 1500.

The facts in the instant case bringing it definitely and clearly within the rule of law generally prevailing and often sanctioned by this court, it would be unprofitable to enter into a discussion of the reasons supporting the rule. It is enough to say that it is designed to secure to the accused the right to identify the charge against vUiich he is called upon' to defend, and furnish a means of combating another prosepution for the same offense.

The judgment is reversed, and the cause remanded. 
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