
    HOGUE v. STATE.
    (No. 5754.)
    (Court of Criminal Appeals of Texas.
    March 31, 1920.)
    1. Criminal law <§=>893 — General verdict should be referred to any charge correctly pleaded and submitted.
    Where information against defendant as a delinquent child made four specifications of delinquency, of which three were submitted and general verdict rendered, verdict should be referred to any charge correctly pleaded and submitted to jury, if supported by evidence.
    2. Infants <§=>16 — Statutes defining delinquent children entitled to favorable construction.
    Statutes defining delinquent children and creating juvenile courts, such as Acts 35th Leg. 4th Called Sess. (1918) c. 26, are beneficial and entitled to favorable construction.
    3. Infants <§=>16 — Prosecutions for delinquency required to follow criminal procedure.
    Consequences of conviction of a child of delinquency being to deprive him of liberty and withdraw it from paternal care, prosecutions are required, by Acts 35th Leg. 4th Called Sess. (1918) c. 26, to follow procedure jn criminal cases.
    4. Infants <§=>16 — Sufficiency of specifications of delinquency against female child considered.
    Information against female child for delinquency under Acts 35th Leg. 4th Called Sess. (1918) c. 26, was sufficient in specifications she associated with named vicious and immoral persons, habitually wandered about streets at night without business or occupation, and had been guilty of immoral conduct through sexual intercourse in a specified public place with a named person, but insufficient in its bare charge she was an incorrigible child.
    5. Infants <§=> 16 — Statute dealing with “incorrigible” children construed.
    “Incorrigible,” used in Acts 35th Leg. 4th Called Sess. (1918) c. 26, prescribing procedure in cases of delinquent children, in its general use means bad beyond correction or reform, but, in view of Pen. Code 1911, art. 10, it was not legislative intent that child to come within law must be bad beyond reform in absolute sense, but rather one whose reformation could not be effected by control to which he was subject.
    [Ed. Note.- — For other definitions, see Words and Phrases, First and Second Series, Incorrigible.]
    6. Infants @=>16---Delinquent children entitled to benefit of Suspended Sentence Law.
    In view of Acts of the 35th Leg. 4th Called Sess. (1918) c. 26, prescribing procedure in cases of delinquent children, children found delinquent are entitled to benefit of Suspended Sentence Law (Code Crim. Proc. art. 865b), and one proceeded against for first time should have been accorded privilege of having jury determine whether sentence should be suspended.
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    Edith Hogue was convicted of being a delinquent child, and she appeals.
    Judgment reversed, and cause remanded.
    Baskett & De Lee, of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was prosecuted as a delinquent child, and is under an indeterminate sentence confining her to the Girls’ Training School for a period of three years.

The sufficiency of the information is challenged. It charges that she was a delinquent child in that: (a) She was an incorrigible child; (b) that she associated with vicious and immoral persons, naming them; (c) that she habitually wandered about the streets of the city of Dallas in the nighttime without being on any business or occupation; (d) that she was guilty of immoral conduct in a public place by having unlawful sexual intercourse with a person, naming him, in a public place, to wit, in an alley near the City Park in the city of Dallas. Subdivisions (a), (c), and (d) were submitted, and a general verdict rendered. This verdict would be referred to any charge correctly pleaded and submitted to the jury, provided there was sufficient evidence supporting it.

The sufficiency of the evidence being questioned, we will give some attention to the criticisms of the information contained in the motion to quash. The underlying purpose of the statutes defining delinquent children and creating juvenile courts is the protection and reformation of children. The courts have treated them as beneficial, and entitled to favorable construction. Lindsay v. Lindsay, 257 Ill. 328, 100 N. E. 892, 45 L. R. A. (N. S.) 908, Ann. Cas. 1914A, 1222; Ruling Case Law, vol. 14, p. 278. The consequence of conviction of delinquency is to deprive the delinquent of liberty, and to withdraw him from the paternal care, and in our state both by judicial construction and expressed legislative declaration the prosecutions are required to follow the procedure m criminal cases., Ex parte McLoud, 200 S. W. 394; Ex parte Pruitt, 200 S. W. 392; Ex parte Ellis, 200 S. W. 840; Miller v. State, 200 S. W. 389; McLaren v. State, 199 S. W. 811; Acts 35th Leg. 4th Called Sess. c. 26. The law requires the prosecution to begin by complaint and information; Some light is thrown upon the requisites of the pleading in these proceedings by the statutes and court decisions upon the subject of vagrancy. Vagrancy is an offense consisting of certain acts or omissions which are yarned in the statute. Cyc. vol. 39, p. 1109. Our statute on the subject (Penal Code, art. 634) names a number of classes of persons who by their occupation or conduct are classed as coming within fithe purview of the law denouncing the offense of vagrancy. In charging the offense, however, it is not sufficient to allege that one is a vagrant, but the facts which bring him' within one of the classes, his acts or omissions, must be named in the pleading. Walton v. State, 12 Tex. App. 117; Ellis v. State, 65 Tex. Cr. R. 480, 145 S. W. 339; Cyc. vol. 39, p. 1111.

Our statute on the subject of delinquent children defines a delinquent child as follows:

“The words ‘delinquent child’ shall include any male child under seventeen years of age, or' any female child under eighteen years of age, who violates any law of this state, or who is incorrigible, or who knowingly associates with thieves, vicious or immoral persons, or who knowingly visits a house of ill repute, or who knowingly patronizes or visits any place where any gambling device is or shall he operated, or who patronizes any saloon or place where any intoxicating liquors are sold, or who habitually wanders about the streets in the nighttime without being on any business or occupation, or who habitually wanders about any railroad yard or tracks, or who habitually jumps on or off of any moving train, or who enters any car or engine without lawful authority, or who is guilty of immoral conduct in any public place. Any such child committing any of the acts herein mentioned shall be considered a ‘delinquent child,’ and shall be proceeded against as such in the manner hereinafter provided and as otherwise so provided by law so as to effect the object of this law.” Acts 35th Leg. 4th Called Sess. c. 26.

The averments in the information covering the actions which were submitted to the jury were, we think, sufficient, with the exception of that which charged that the appellant was incorrigible. The particularity required, we think, is not greater than that which obtains in a charge of vagrancy, concerning which see Ex parte Strittmatter, 58 Tex. Cr. R. 156, 124 S. W. 906, 137 Am. St Rep. 937, 21 Ann. Cas. 477. The term “incorrigible” in its general use means bad beyond correction or reform. See Century Dictionary. In article 10 of the Penal Code it is declared that in interpreting the meaning of words used the context and subject-matter relative to which they are employed may be taken into consideration. The purpose of the statute being the reformation of juveniles, we think it was not the intent of the Legislature that a child, to come within the purview of the law, must be bad beyond reform or correction in an absolute sense, but rather one whose reformation could not be effected by the control to which he was subject, but that to bring it about the intervention of the power of the state would be necessary. See In re Parker, 118 La. 471, 43 South. 54; Corpus Juris, vol. 18, p. 475, note 69.

Whatever may be the meaning of the term “incorrigible” as used in the statute, it would be the acts and conduct of the individual which would characterize him as a delinquent. The information, therefore, charging one with delinquency on the ground that he was incorrigible, should contain averments susceptible of proof describing the conduct claimed to render him subject to the prosecution.

The appellant sought to have the jury determine whether, if convicted, her sentence should be suspended. This effort the trial judge refused to sanction, upon the ground that the statute relating to the suspension of sentences had no application to a juvenile delinquent. Article 865b, C. C. P., provides that one charged with a felony may invoke the decision of the jury whether his sentence, if convicted, shall be suspended. The-juvenile act under which this prosecution is made contains the following provision:

“If said juvenile be found to be delinquent, and sentence be not suspended as provided in the laws of this state in cases of felony on first offense, the defendant on conviction shall be committed to the Girls’ Training School upon an indeterminate period not extending beyond the time that such juvenile will reach the age of twenty-one years, and the jury trying the case shall state in their verdict the time and place of commitment.” See chapter 26, Acts 35th Leg. 4th Galled Sess.

This part of the statute serves no purpose unless it be to add delinquent children to those persons entitled to the benefit of the Suspended Sentence Law, and to adopt the procedure prescribed for suspending sentences in felony cases. See Acts 1913, p. 8 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts.6095e-6095j). It is true that delinquency, under the statute, is not a felony, but a delinquent child is subject to confinement for a period of years. This may happen though the transaction with which he is charged may be trivial. The theory upon which the Suspended Sentence Law finds a place in our statutes is that it is a means of reforming first offenders. Wte find nothing in the statute importing intent to withhold from delinquent children the benefit of the Suspended Sentence Law, but we find language, which we have quoted above, indicating a contrary intent. Such construction is in harmony with the purpose and scope of the legislation, and in our judgment in the instant case the appellant should have been accorded the privilege of having the jury determine whether any sentence that might be made against her should be suspended.

There are complaints of the failure to limit impeaching testimony, and other matters of practice which will doubtless not arise upon another trial. We will refrain from discussing the facts, and order the judgment reversed, and the cause remanded, because the facts upon which rest the allegation that the appellant was incorrigible were not pleaded, and because the jury was not instructed upon the law of suspended sentences. 
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