
    GEBHARDT v. STATE.
    (No. 5660.)
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1920.)
    Infants ‘®=n>16 — Fact of delinquency and • EXTENT OF PUNISHMENT ABE EXCLUSIVELY BOB THE JURY.
    On an information under Code Cr. Proc. tit. 17, as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 26, charging defendant with being a delinquent child, and where a jury was demanded and impaneled and found defendant to be a delinquent child, the trial judge was without authority to fix the punishment, as defendant’s guilt, as well as the amount of his punishment, was exclusively within the province of the jury.
    Appeal from Bexar County Court; J. R. Davis, Judge.
    Elmer Gebhardt was found to be a delinquent child, and committed to the custody of the Bexar County Training School upon an indeterminate sentence of from two to five years, and he appeals.
    Reversed, and cause remanded.
    W. C. Linden and Joe H. H. Graham, both of San Antonio, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The information charged and the jury found that the appellant was a delinquent child. The court entered judgment committing him to custody of the Bex-ar County Training School upon an indeterminate sentence of from two to five years. A jury having been demanded and impaneled, the trial judge was without power or authority to fix the punishment. The guilt of the appellant, as well as the amount of his punishment, was a matter exclusively within the province of the jury. This was held in Ex parte Pruitt, 200 S. W. 394, and in a number of cases therein referred to.

The facts in evidence do not support the allegations of the complaint, they are insufficient to show that appellant violated any of the laws of the state, and do not afford an adequate foundation for the verdict rendered.

Interesting questions are suggested concerning the validity of some of the provisions of the Delinquent Child Act, title 17, Texas C. C. P., amended in chapter 26, Acts 35th Leg. 4th Called Sess. (1918). We are furnished no brief supporting the contentions advanced; and the questions raised are in the nature of an attack upon the constitutionality of the law, and, it not being necessary to the disposition of the case, we pretermit a discussion of them.

The judgment is reversed, and the cause remanded.  