
    BROWN v. STATE.
    (No. 8778.)
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1925.)
    i.Infants <§=568 — Special province of judge to determine whether defendant was juvenile.
    _ In prosecution for robbery, it was special province of judge, under Code Cr. Proc. 1911, art. 1195, to determine whether defendant was a juvenile.
    2. Infants <§=>68 — Proceeding by which juvenile delinquent convicted' under original felony indictment, may be taken advantage of for first time on motion for new trial.
    Proceeding by which juvenile delinquent was convicted under original felony indictment, and sentenced to juvenile training school, might be taken advantage of on motion for new trial, though no objection was urged until then.
    3. Infants <§=>68 — All prosecutions for delinquency arising from felony charges must be based on complaint and information.
    All prosecutions for delinquency arising from felony charges must be based on complaint and information, and in absence thereof a judgment therefor is unsupported, in view of Code Cr. Proc. 1911, art. 1197, par. 4, as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 26 (Yernon’s Ann. Code Cr. Proc. Supp. 1922, art. 1197).
    4. Infants <§=>68 — Statute held to manifest legislative intention not to permit a juvenile to be proceeded against as a delinquent under felony indictment.
    Code Cr. Proc. 1911, art. 1197, par. 4, as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 26 (Vernon’s Ann. Code Cr. Proc. Supp. 1922, art. 1197), manifest a legislative intention not to permit a juvenile to be proceeded against as delinquent under a felony indictment, but that such proceeding might be had on original information and complaint in misdemeanor charges only.
    5. Infants <§=>68 — Judgment condemning defendant as a felon, and sentencing him to training school, unauthorized, where judicially determined that he was a juvenile.
    In prosecution for robbery, judgment condemning defendant as a felon and sentencing him to training school was unauthorized, since court, having judicially determined that defendant was a juvenile, should have dismissed indictment against him, as required by Code Cr. Proc. 1911, art. 1195, proceeding against him as a delinquent by complaint and information under article 1199; Acts 35th Leg. 3d Called Sess. (1917) c. 7, § 3 (Yernon’s Ann. Code Cr. Proc. Supp. 1918. art. 1196½), not changing procedure as to juvenile delinquents.
    Appeal from District Court, Taylor County; W. R. Ely, Judge. ' -
    George W. Brown was convicted, of robbery, and he appeals.
    Reversed and remanded.
    Ben L. Cox and Kirby, King & Overshiner, all of Abilene, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appeal is. from a judgment condemning appellant to be guilty of robbery, and assessing his punishment at one year in the state training school for negro boys.

Upon the 18th day of July, 1923, an indict • ment was returned against appellant charging him with robbery. The judge, after hearing the evidence, found him to be a juvenile, and ordered that he be tried as a juvenile in that court sitting as a juvenile court. This order, as it appears in the transcript, bears no date. At the January term, 1924, of said court appellant was put to trial upon the indictment, the judge charging the jury if . they should convict him, and find that he was then under'17 years of age, they should assess his punishment at confinement in the state training school for negro boys for any term of years not exceeding the time when he should have attained the age of 21 years. The jury found him guilty of robbery, also found him to then be a juvenile, and fixed his punishment at one year in the state training school for negro boys. The judgment condemns him as a felon, and follows the verdict as to punishment. No objection to the procedure was entered during the trial, and no exceptions were made to the court’s charge. For the first time objection to the procedure and judgment was interposed on motion for new trial.

Under the provision of article 1195, C. O. P., it was the special province of the judge to determine whether appellant .was a juvenile. Robertson v. State, 92 Tex. Cr. R. 350, 243 S. W. 1098, and authorities therein cited; Valdez v. State (Tex. Cr. App.) 265 S. W. 161. Having judicially determined that appellant was a juvenile, the court should have dismissed the felony indictment against him, as also required by said article 1195, and proceeded against him as a delinquent by complaint and information, as provided in article 1199, C. O. P. It has been held that where one is condemned as a delinquent under the original felony indictment, and sent to the juvenile training school, he is entitled to liberation under habeas corpus proceedings. Ex parte Ramseur, 81 Tex. Cr. R. 413, 195 S. W. 864; Ex parte Medrano, 81 Tex. Cr. R. 388, 195 S. W. 865; Ex parte Ellis, 82 Tex. Cr. R. 641, 200 S. W. 840. If habeas corpus is available to one convicted as a juvenile delinqueht under such original indictment, and in the absence of complaint and information, it would seem that advantage might be taken of such procedure upon motion for new trial, though no objection was urged until then. While the judgment condemns appellant to be guilty of robbery, and a felon by reason thereof,''the further finding that he was a juvenile, and sentencing him to the training school, has the legal ■effect of condemning him as a delinquent juvenile based upon the robbery charge. All prosecutions for delinquency arising from felony charges must be based upon complaint and information, and in absence thereof a judgment therefor is unsupported. That such holding is a correct interpretation of the statute seems to be borne out by paragraph 4 of article 1197, as amended by the fourth called session of the Thirty-Fifth Legislature in chapter 26 (Vernon’s Ann. Code Cr. Proc. Supp. 1922, art. 1197). The paragraph referred to reads as follows:

“If a prosecution for misdemeanor is filed against a male under 17 years of age, or female under 18 years of age, the defendant or other person as named in article 1195, may file affidavit, setting up her or his age, and on proof of such fact the prosecution shall be' maintained against the defendant as a juvenile delinquent, without new charge.”

It appears clearly from the language just quoted that it was not the purpose of the Legislature to permit a juvenile to be proceeded against as a delinquent under a felony indictment, but that such proceeding might be had upon the original complaint and information in misdemeanor charges only.

By chapter 7, p. 57, Acts 3d Called Sess. 1917, the Legislature established a separate training school for negro boys, and provided for the transfer thereto of those who were then in the general training school for boys at Gatesville. Section 3 of said act (Vernon’s Ann. Code Cr. Proc. Supp. 1918, art. 1196½) reads:

“Hereafter all negro male persons under the age of seventeen (17) years, who shall -be convicted of a felony or other delinquency, in any court within this state, unless his sentence be suspended as provided by law, or otherwise disposed of or unless by reason of the length of the term for which he is sentenced, he is required under the law to be confined in the state penitentiary, shall be confined in the state training school for negro boys.”

We think this must have misled the learned trial judge. It cannot be held that the Legislature intended to repeal the procedure as to juvenile delinquents by such act, nor to have intended to lay down one procedure for boys of one race, and another procedure for those of another race!

For the reasons stated, the judgment must be reversed and the cause remanded. 
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