
    (86 Tex. Cr. R. 509)
    Ex parte CAIN.
    (No. 5566.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1919.
    On Motion for Rehearing Jan. 21, 1920.)
    1.- INDICTMENT AND INFORMATION <&wkey;4 — COMPLAINT OR INDICTMENT NECESSARY.
    No prosecution for a criminal offense can be had except upon complaint or indictment.
    2. Infants <®=»68 — Juvenile offenders must BE PROSECUTED UPON COMPLAINT AND INFORMATION.
    All prosecutions of a juvenile must be upon complaint and information, in view of Acts 35th Leg. 4th Called Sess. (1918) e. 26, amending Code Cr. Proe. 1911, art. 11,97.
    3. Habeas corpus <&wkey;27 — Attack on judgment PROPER WHERE .NO JURISDICTION.
    A judgment may be attacked as void by ha-beas corpus if matters alleged in the attack are such as, if true, the trial court would have been without jurisdiction either of the person of the relator or of the subject-matter, or to render the particular judgment.
    4. Habeas corpus <®=o29 — Grounds fob attack UPON JUDGMENT STATED.
    Where it appears that no complaint was filed or that no warrant or capias was issued, or in the case of an infant with parents living in the vicinage that no notice was given them and -no opportunity afforded for a trial by jury, or to be represented by counsel of the infant’s or the parents’ choice, the judgment may be attacked by habeas corpus.
    5. Habeas corpus <&wkey;85(l) — Petition does NOT PROVE FACTS ALLEGED. •
    The petition of a relator in a habeas corpus proceeding is but a pleading and proves none of the facts’alleged.
    6. Infants <&wkey;69 — Statute fixing- five-year INDETERMINATE SENTENCE DOES NOT APPLY TO FEMALE JUVENILES.
    Rev. St. 1911, art. 6231, fixing a five-year limit for indeterminate sentence, refers only to male juveniles, and does not apply to a female juvenile.
    
      1: Habeas corpus <&wkey;85(l) — Want of notice to parents of juvenile provable TO SHOW VOID JUDGMENT.
    In a prosecution by habeas corpus brought by a juvenile to be released from a training school, that no notice was given to the parents of relator of her arrest and prospective trial was properly provable to sho.w the invalidity of the judgment of commitment.
    8. Infants <&wkey;68 — Proceedings under juve- . NILE LAW MUST FOLLOW COURSE OF CRIMINAL LAW.
    Proceedings under the juvenile law are intended to follow the general course of a criminal case, and that, after complaint is filed and warrant or capias issued, a time certain should be set for a hearing or trial, at which both parties shall have opportunity to present such pleas or evidence as might be desired; in view -of Vernon’s Ann. Code Or. Proc. 1916, art. 1200.
    9. Habeas coepus &wkey;>4 — Functions op writ AS APPEAL STATED.
    While the court ordinarily declines to permit the functions of an appeal to be impinged by a writ of habeas corpus, the rule does not-apply to the case of a mere child whose parents were not notified of the proceedings and who had no opportunity to prepare for an appeal, notwithstanding Code Or. Proc. 1911, art. 1197, as amended by Acts 35th Leg. 4th Called Sess. <1918) c. 26.
    10. Habeas coepus <&wkey;85(l) — Evidence that juvenile’s parents were not notified of proceedings improperly excluded.
    In a habeas corpus proceeding brought by a juvenile, evidence by the county judge that relator’s parents had not been notified of the proceedings held improperly' excluded.
    Appeal from District Court, McLennan County; H. M. .Richey, Judge.
    Habeas corpus proceedings by Jennie May Cain against the Superintendent of the Girls’ Training School. Prom an order remanding relator to the custody of the Training School, she appeals.
    Reversed and remanded.
    James E. Yeager, of Waco, for appellant.
    C. M. Cureton, Atty. Gen., and J. W. Maxwell, W. J. Townsend, and Alvin M. Owsley, Asst. Attys. Gen., for the State.
   LATTIMORE, J..

This is an appeal from an order of the Seventy-Fourth^ district court remanding relator to the custody of the su-. perintendent of the Girls’ Training School, after a hearing on habeas corpus seeking her release. The application for the writ presents numerous grounds therefor, which, if sustained by proof, would require favorable action of the court thereon.

It is alleged in said petition that relator was personally taken charge of by the county judge, “without warrant, complaint, or capi-as^”'and in substance some charges that without the knowledge of her parents, who live in Waco and were known to the authorities, and without, citation or notice of any kind whatever, relator was carried before said county court, the county probation officer appointed to represent her, ■ a jury waived; a judgment entered committing her to the Girls’ Training School until she arrived at the age of 21 years, and that she was sent to said institution — all this occurring without the knowledge of, or notice to, her parents.

It is specially provided in chapter 26, Acts of the Fourth Called Session of the Thirty-Fifth Legislature, amending article 1197, C C. P., that a prosecution and conviction of*a juvenile is a criminal ease. Citation of authorities is needless to sustain the proposition that no prosecution of one for a criminal offense can be had except upon complaint or indictment, and we might further state that in all prosecutions of a juvenile the same are required by statute to be upon complaint and information.

Article 1200, Vernon’s C. C. P., provides that when such complaint is filed, a warrant or capias “may issue as in other cases,” and further stipulates that notice of the proceedings is to be served upon the parents, if living, otherwise upon the‘guardian or person with whom the juvenile offender is living, and the right is given to such juvenile to give bond or other security “for its appearance at such trial.” See amended article 1197, supra. It is further stated in, said statute that the juvenile so charged must be found by the court or jury to be a delinquent child before it shall be committed, etc.

■ Upon the hearing under this writ before the district judge it appears from the statement of facts that relator offered in evidence only the judgment and commitment, the writ of habeas corpus, and the return, and proffered the testimony of the county judge to show that no notice was given to the parents or persons interested, which latter testimony was rejected by the trial court, and we have no means of knowing what the statement of the- county'judge would have been upon that point, as it is not set out in the bill of exceptions.

An examination of the judgment ahd commitment fails to reveal any serious defect in either. It is recited that a complaint and information was filed by the county attorney, and that in said complaint the acts constituting delinquency on relator’s part were set out; also that all persons interested had had due notice, as provided by law; that a jury was waived, and the matters submitted to the court, who, from all the evidence adduced, found relator tó be a delinquent child of the age of 13 years; that she did commit the acts charged in the information, and was accordingly sentenced to the Girls’ Training School at Gainesville; This appears to be a regular judgment, and there is nothing in the recitals of the same to indicate the existence of the defects alleged in the application for this writ. ,

A judgment may be attacked as void by habeas corpus if the matters alleged in the attack are such as, if true, the trial court would have been without jurisdiction either of the person of the relator or of the subject-matter, or to render the particular judgment.

Evidence sufficient that no complaint was filed, or that no warrant or capias was issued, or in the case of an infant with parents living in the vicinage that no notice was given, them, and no opportunity afforded for a trial by jury, or to be represented by counsel of her own or their, choice — any one of these wouid constitute an attack upon the judgment which should be permitted, and, if sustained by the evidence, the judgment should be held void and the relator released. In the instant case relator made no such proof, apparently attempting, as disclosed by the record, to prove only one of the matters set out. The petition of relator is but a pleading, and proves none of the facts alleged. The answer of respondent alleges a valid judgment. The fact that relator was given an indeterminate sentence longer than five years is not beyond the power of -the trial court, and is in violation of no law. Article 5231 of our Revised-Civil Statutes, which fixes a five-year limit, has reference only to male juveniles, and does not apply to the instant case.

Several bills of exception appear in the record. One evidences objection made by the relator to the judgment and commitment offered by respondent; the ground of the objection apparently being that no notice was in fact given to the parents of relator of her arrest and prospective trial. There is nothing in the bill by which this court may know that there was a lack of notice, and the bill cannot be considered. However, it is recited in another bill of exceptions that relator placed the county judge upon the stand and offered to prove by him that no notice of any kind was given to the parents of relator, or other interested parties, as recited in the judgment. A. general objection was sustained on the ground that this would be a collateral attack by a habeas corpus proceeding, and that the district court could not go behind the judgment of the trial court to investigate the truth or falsity of the recitals therein, even though the question of jurisdiction was involved. We think this was clearly erroneous, and that any allegation of facts in the application which, if sustained, would show^ a void judgment, would admit proof of such facts.

It seems clear from an inspection of the various provisions of the juvenile law that it is expected of a proceeding thereunder that it shall follow the general course of a criminal case, and that, after complaint is filed and warrant or capias issued, there shall be a time certain set for a hearing or trial, at which both parties shall have opportunity to present such pleas or evidence as might be desired. A child óf the age of 13 can have little or no conception of the proper procedure in such case, and cannot be expected to ■ know what course to pursue in order to best care for its own interest, nor can it be expected that one not related, or any one other than a parent or guardian, should feel a parental interest and responsibility; so it is provided in article 1200 that, following the issuance of the warrant or capias, no incarceration of such child shall be had except it be necessary to insure its presence in court, when required, and it is expressly made the duty of the sheriff or officer executing the process (meaning thereby the capias' or warrant) to serve notice on the parents, if living and known, otherwise on the guardian or person with whom the child may be living, off such proceeding.

We deem these wise and just provisions, and so necessary to the welfare of those who are the objects of these laws that the disregard of them should be held vital, and that in a proper case the court will take cognizance thereof under a writ of habeas corpus.

It is true this character óf cases is now made criminal by statute, and an appeal authorized direct to this court. See amended article 1197, supra. This court ordinarily declines to permit the functions of an appeal to be impinged by the writ of habeas corpus, but this could not hold in the case of a mere child, where the effort is to show that thp parents were not notified of the proceedings, and had no opportunity to prepare for an appeal, or to take the necessary steps for' same.

We think the court erred in refusing to allow the evidence of the county judge as offered. Complaint is made that the county judge was allowed to state, as a matter of personal privilege, to the court trying this case, his reason for arresting relator and adjudging her a delinquent. What such reasons were do not appear,in this record, and we are unable to determine from the bill .whether the objection of relator was because the facts were stated or because they were not placed in the record. No provision of our statute would seem to authorize a personal arrest by the county judge of a juvenile offender, but, at most, it could not affect any question raised in this case.

We think this case should be reversed and sent back for a hearing in the Seventy-Fifth district court, upon which, if it should appear after a full investigation of the matters involved that no complaint and information were in fact filed, or that no warrant or capias were in fact issued, or that no notice was given to! the parents of relator, if living and known, or to the guardian or the person with whom she was living the judgment of commitment should be held void, and the release of relator ordered.

The case is reversed and remanded for proceedings in accordance with this opinion.

Opinion on Motion for Rehearing.

MORROW, J.

We think it sufficiently appears from the bill of exceptions that, except for the refusal of the court to admit the testimony, appellant would have made proof that the judgment was entered without notice to the parents of the appellant. It was manifest, we think, from the bill that the only reason that this was not proved was because the respondent and the court were of the opinion that such proof would not be admissible, because it would be testimony available only in a collateral attach upon the judgment. The position of the appellant was that the judgment was subject to collateral attach, because it was void, the court having acquired no jurisdiction, and that the proof offered would establish this vice in the judgment. This, we think, was a correct view, and it should have prevailed. Cyc. vol. 23, p. 1047; Parker v. Spencer, 61 Tex. 165; Roller v. Ried, 87 Tex. 69, 26 S. W. 1060.

The motion for rehearing is overruled. 
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     