Kerley v. State

• Decision Date: 20 April 1921
• Docket Number: (No. 6181.)
• Citation: 230 S.W. 163
• Parties: KERLEY v. STATE.
• Court: Texas Court of Criminal Appeals

230 S.W. 163

KERLEY v. STATE.

(No. 6181.)

Court of Criminal Appeals of Texas.

April 20, 1921.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Dee Kerley was convicted of rape, and appeals. Reversed and remanded.

Smith & Woodruff, of Comanche, for appellant.

C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for rape. Punishment fixed at confinement in the penitentiary for a period of five years.

It is not necessary that an indictment charging rape upon a girl under 18 years of age negative her previous unchastity or refer to the matter of consent. The punishment for rape is confinement in the penitentiary or death; and in capital cases the statute allows to the state and to the accused each 15 peremptory challenges. In felonies less than capital but 10 such challenges are allowed. In this instance the appellant demanded 15, and the court refused to allow him more than 10. He did not demand a special venire, and the prosecuting attorney expressly stated that he would not insist upon the death penalty. This statement was noted on the docket, and in fact the prosecution did not urge the jury to inflict capital punishment.

The appellant, we think, justly insists that rape was made a capital offense by the lawmaking power of the state, and that its classification as such cannot be changed by any declaration that the prosecuting attorney may make. Our statute says: "An offense for which the highest penalty is death is a capital felony." Penal Code, art. 56. It is required by statute that the Legislature (in whom is vested the authority to make laws) shall "define in plain language every offense against the law * * * and affix for each offense its proper punishment." Penal Code, art. 1. There are capital cases in which the indictment includes lower grades of crime. Doubtless in such cases the discretion rests with the prosecuting authorities and the trial judge to dismiss the prosecution so far as it relates to higher grade, and thereby render the offense charged less than capital. Gonzales v. State, 226 S. W. 405.

In the case before us there was no effort to dismiss the charge of rape and prosecute for assault with intent to rape. The conviction is for rape. The court correctly instructed the jury that, if they found the appellant guilty, they should "assess his punishment at death or confinement in the penitentiary for life or any term of years not less than five." It was proper to so charge because the character of the case for the purpose of selecting a jury was fixed by the indictment, and not by the verdict that might be rendered. Caesar v. State, 127 Ga. 713, 57 S. E. 66; Ex parte McCrary, 22 Ala. 65; Ex parte Dusenberry, 97 Mo. 504, 11 S. W. 217.

To determine whether the accused in a capital case is guilty and to assess his punishment, the Legislature has prescribed the procedure to be followed in the selection and formation of the jury. The option to exercise 15 peremptory challenges in a capital case is given by law to the accused. Code of Crim. Procedure, art. 691. His right to a fair trial is denied him when the privilege of exercising these challenges is arbitrarily taken from him. Ruling Case Law, vol. 16, p. 253; Searle v. Roman Catholic Bishop, 203 Mass. 493, 89 N. E. 809, 25 L. R. A. (N. S.) 992; 17 Ann. Cas. 340; Lewis v. United States, 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011; State v. Briggs, 27 S. C. 80, 2 S. E. 854; Schumaker v. State, 5 Wis. 324; Lamb v. State, 36 Wis. 424; Cruce v. State, 59 Ga. 83; Cyc. of Law & Procedure, vol. 24, p. 351.

At the beginning of the trial the right to challenge more than 10 jurors was assumed, and appellant challenged 12. Discovering this the court required the reinstatement of 2 of these jurors because the appellant's right to peremptory challenges was exhausted by the use of 10. The...