
    J. D. (Shorty) Payne v. The State.
    No. 11568.
    Delivered March 21, 1928.
    Rape — Under Age of Consent — Right to Discharge — Statute Construed.
    Under the terms of Art. 576, C. C. P., when a defendant has been detained in custody or held to bail for his appearance, the prosecution shall be dismissed and the defendant discharged unless indictment or information he presented against such defendant at the next term which is held, after his confinement, or admission to bail. This statute, however, has no application to a defendant who has been indicted for a felony by a grand jury subsequently to the first term after his arrest.
    Appeal from the District Court of Potter County. Tried below before the Hon. Henry S. Bishop, Judge.
    Appeal from a conviction for rape of a female under the age of consent, penalty twenty-five years in the penitentiary.
    The opinion states the case.
    No brief filed for appellant.
    A. A. Dawson, State’s Attorney, for the State.
   HAWKINS, Judge.

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

Prosecutrix was not quite fifteen 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 of 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 2nd day of April without indictment having 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 Art. 576, C. C. P., 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 confinement 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 Art. 576 would have been controlling, but it has not 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.

Affirmed.  