This is an original proceeding in which the petitioner, John R. Brannon, applies to this court for a writ of habeas corpus to be admitted to bail and alleges that he is unlawfully imprisoned and restrained of his liberty in the county jail of Washington county, Okla., by Andrew Henderson, sheriff thereof; that the cause of said restraint is that he is charged in said county with the crime of rape alleged to have been committed on the 18th day of June, 1923, upon the person of one Mildred Luton. A copy of the information is contained in the petition and made a part thereof, and the petitioner contends that he is only charged in said information with rape in the second degree, a bailable offense under the statutes of this state. The information charges that the defendant committed said crime by means of force overcoming the resistance of the said Mildred Luton, and also, in addition, alleges that the said Mildred Luton was a female person under the age of 16 years, to wit, of the age of 14 years, and not the wife of the said John R. Brannon. Upon the hearing it was strenuously contended by counsel representing petitioner that rape committed upon a female between the ages of 14 and 16 years is under our statutory provisions rape in the second degree whether committed by force or violence or otherwise, and counsel cited several decisions of this court to support such contention. Without passing upon said question, as the same was not considered necessary to a determination of this application, *Page 191 the court concluded, in view of the fact that the petitioner is a boy only a few days past the age of 18 years, to, as a matter of discretion, admit petitioner to bail. The writ was therefore accordingly allowed and the petitioner admitted to bail in the sum of $10,000. Order to that effect was entered July 26, 1923.