
    (86 Tex. Cr. R. 205)
    TIPPINS v. STATE.
    (No. 5532.)
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1919.
    On State’s Motion for Rehearing, Nov. 26, 1919.
    On Appellant’s Motion for Rehearing, Jan. 14, 1920.)
    1. Criminal law <&wkey;l086(13) — No review in ABSENCE OF JUD&MENT ON VERDICT.
    An appeal by one found guilty of being a delinquent cannot be entertained where the appellate court cannot find in the record any judgment on the verdict of the jury, or any order of the court directing the disposition to be made of the accused, under Code Cr. Proc. 1911, art. 1197, as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 26, and Vernon’s Ann. Code Cr. Proc. 1916, arts. 853-868.
    On State’s Motion for Rehearing.
    2. Criminal law &wkey;>1131(7) — Dismissal of APPEAL SET ASIDE ON PERFECTION OF RECORD.
    Where an appeal was dismissed because -no judgment on the verdict or any order of the court directing the disposition to be made of the accused could be found in the record, the dismissal will be set aside when the record is perfected.
    
      8. Criminal law <&wkey;1090(7) — Order denting CONTINUANCE NOT REVIEWABLE IN ABSENCE OF BILL OF EXCEPTIONS.
    Where no bill of exceptions was reserved complaining 'of the overruling of a motion for continuance, and disclosing the reasons upon which the action was based, the question cannot be reviewed.
    4. Criminal law <&wkey;>211(4) — Complaint CHARGING DELINQUENCY NEED NOT ALLEGE THAT ACCUSED WAS NEGRO-.
    Complaint charging delinquency need not allege that the child is white or black because a separate place of confinement is provided for negro delinquents, under Code Cr. Proc. 1911, arts. 1195-1207, Vernon’s Ann. Code Cr. Proc. 1916, arts. 853-868, and Acts 35th Leg. 4th Called Sess. (1918) c. 26.
    5. Criminal law &wkey;961, 1184 — Improper DESIGNATION OF PLACE OF CONFINEMENT CORRECTED UPON MOTION FOR NEW TRIAL OR APPEAL.
    If the proper place of confinement is not designated in a judgment finding one guilty of being a delinquent child, it may be corrected upon a motion for new trial or on appeal.
    On Appellant’s Motion for Rehearing.
    6. Infants <&wkey;16 — Child violating ant LAW A “DELINQUENT.”
    Under Code Cr. 'Proc. 1911, art. 1197, as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 26, a child under 17 years of age who “violates any law of the state” is a delinquent child, and the fact that defendant child made an assault upon a female child calculated to inflict shame and disgrace brought the case within the Delinquent Child Act, whether the assault was aggravated or simple.
    [Ed. Note. — Por other definitions^ see Words and Phrases, Hirst and Second Series, Delinquent Child.]
    7. Constitutional law &wkey;>70(3) — Justness OF STATUTE LEGISLATIVE QUESTION.
    Whether or not a statute is a proper one and should be changed is a legislative, and not a judicial question, and, while a statute stands unchanged, the court must enforce it as it finds it.
    Appeal from Tarrant County Court; Hugh L. Small, Judge.
    Bennie Tippins was convicted of being a delinquent child, and appeals.
    Affirmed.
    Dee Estes and Gillespie & Prichard, all of Et. Worth, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was tried as .a delinquent child, was found guilty by a jury, filed a motion for a new trial, which was overruled, and notice of appeal given. We fail to find in the record any judgment on the verdict of the jury, or any order of the court directing the disposition to be made of the appellant. In this state pf the record, we think we are without jurisdiction to entertain the appeal. This is a criminal proceeding. See article 1197, tit. 17, as amended in the Acts of the Thirty-Fifth Legislature, Fourth Called Session, c. 26. The requisite of a judgment sufficient to support an appeal will be found in Vernon’s Texas Criminal Statutes, vol, 2, tit. 9, c. 3, p. 847.

Because of the absence of the final judgment, the appeal is dismissed.

On State’s Motion for Rehearing.

The record having been perfected, the dismissal heretofore entered is sot aside.

The appellant was charged by complaint and information to be a delinquent child; the specific facts upon which the allegation was based being that he had violated the laws of the state by making an assault with intent to rape upon a female named in the complaint and information. The evidence, while quite conflicting, is sufficient to show an aggravated assault, if not one of higher grade. A motion for continuance was made to secure the attendance of a witness. No bill of exceptions having been reserved complaining of the action of the court in overruling the motion for continuance, and disclosing the reasons upon which the action was based, the question is not in shape for review. Nelson v. State, 1 Tex. App. 44; and other cases listed in Branch’s Annotated Texas Penal Gode, p. 183, § 304. It is urged that the complaint should have alleged that the appellant was a negro, for the reason that a separate place of confinement is provided for negro delinquents. The contention is not meritorious. If the proper place of confinment should not be designated in the judgment, it could be corrected upon motion for a new trial or on appeal. The law, however, does not require that the complaint should state whether the accused is white or black. See Oode of Criminal Procedure, tit. 17; Vernon’s Criminal Statutes, vol. 2, p. 986; Acts 35th Legislature, 4th Called Session, c. 26.

The motion for rehearing is granted, and the cause reinstated and considered on its merits, and, no error appearing in the record, the judgment is affirmed.

On Appellant’s Motion for Rehearing.

The contention that the facts would not bring the offense within- any of the subdivision's of the statute defining aggravated assault, the appellant being a minor, if sound, which we question (Hand v. State, 217 S. W., .not .yet officially reported), would not avail the appellant. The prosecution in Miller v. State, 67 Tex. Cr. R. 654, 150 S. W. 635, to which we are referred, was not one under the statute pertaining to juvenile delinquents. The Delinquent Child Act makes one subject to its terms who is under 17 years of age and who “violates any law of the state.” See article 1197, Code of Crim. Procedure, as amended in the Acts of the Thirty-Fifth Legislature, Fourth Called Session, c. 26, p. 43.

The conviction in the instant case involves the finding by the trial court that the appellant made an assault upon a female child calculated'to inflict shame and disgrace. Whether that assault be an aggravated one or a simple assault, it comes within the statute because it constitutes a violation of the criminal laws of the state, and authorized the trial court to render the judgment from which this appeal was taken. Doubtless there are provisions of ,the juvenile law which ought to be changed. Whether it shall be done or not is a législative, and not a judicial, question. The Delinquent Child Act has been upheld in many of its provisions, and while it stands unchanged the courts miist enforce it as they find it. See Ex parte McLoud, 200 S. W. 394; Ex parte Pruitt, 200 S. W. 392; Ex parte Ellis, 200 S. W. S40; Miller v. State, 200 S. W. 389; McLaren v. State, 199 S. W. 811; Id., 209 S. W. 669.

The motion for rehearing is overruled. 
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