
    Ex parte RAMSEUR.
    (No. 4505.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Infants <@=316 — Delinquent Child — Prosecution — Statutes.
    Under Code Cr. Proc. 1911, art. 1195, providing that, when the grand jury indicts a male under 17 years with a felony, he, or any one interested, before trial can set up by affidavit that he is a juvenile under 17, that the court shall hear the testimony, and that, if the defendant is under such age, the criminal proceeding shall be dismissed and he be proceeded against as a juvenile, and article 1199, providing that all proceedings under the delinquent child act shall be begun by sworn complaint and information filed by the county attorney, etc., where a 17 year old boy was indicted for burglary and he properly pleaded that he was under 17, and the trial court found that such was the fact, dismissed the criminal proceeding, and placed the case on the juvenile docket, a judgment adjudging the boy guilty of burglary, sentencing him to confinement in the Boys’ Industrial School, and remanding him to the custody of the sheriff, was void, since the proper and only way to have proceeded against him after dismissal ■of the indictment was by complaint and information either in the district or county court alleging he was a delinquent and charging the facts.
    [Edr Note. — For other cases, see Infants, Cent. Dig. § 16.]
    2. Habeas Corpus <@=29 — Propriety oe Remedy — Delinquent Child.
    Habeas corpus to the Court of Criminal Appeals is a proper remedy for a boy under 17, indicted for burglary, and, after dismissal of the indictment, sentenced by the court to the Boys’ Industrial School as a delinquent without •complaint and information against him so alleging.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 24.]
    Application for writ of habeas corpus on behalf of Nelson Ramseur.
    Writ granted and ■ordered issued, with instructions.
    E. A. Camp, of Rockdale, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an application to this court for a writ of habeas corpus. •On a previous day the court ordered the application filed and the cause set down for hearing to determine whether the court would issue the writ, and, if so, what disposition it would make thereof. It was duly ■argued and submitted on the day set for its hearing.

The facts are agreed to. In substance they .are that on April 26, 1917, the grand jury of Lee county indicted appellant for burglary, the indictment being in due and regular form, simply charging that appellant committed that offense. He was arrested, gave bond, and when the case was called for trial, he properly pleaded that he was a juvenile under 17 years of age, and prayed the court that the said criminal prosecution against him be dismissed, and that if tried he should be proceeded against and tried as a delinquent. The judgment heard the testimony on his plea, found as a fact that he was under 17 years of age, and dismissed the criminal prosecution against him, and placed the cause on his juvenile docket. He in the proper time and way objected to the court then trying him as a delinquent under said indictment only, and moved that instead the proper complaint and information be filed against him charging him with being a delinquent, and that he be tried under articles 1195-1206, inclusive, of the Code of Criminal Procedure. His objection and motion were overruled, and the court forced him to trial on the indictment only. He then waived a jury and submitted the cause to the district judge. It was agreed that the evidence heard by the judge was amply sufficient to show that he was guilty of burglary beyond a reasonable doubt as charged in said indictment. The judge thereupon adjudged that he “is guilty of the offense of burglary, and is a delinquent child under the law, and that he be punished as has been determined by the court by confinement in the Boys’ Industrial School at Gatesville for a term of three years,” and remanded him to the custody of the sheriff of Lee county, Tex., to await the further order of the court. He is now, and since then has been, under said order and commitment in the custody of the said sheriff.

The said articles of the Code of Criminal Procedure (1195-1206, inclusive), and the time and manner of their enactment and amendment, have been repeatedly stated by this court in the recent cases of Ex parte McDowell, 76 Tex. Cr. R. 1, 172 S. W. 213, McCallen v. State, 76 Tex. Cr. R. 353, 174 S. W. 611, and Ex parte Bartee, 76 Tex. Cr. R. 285, 174 S. W. 1051, so that it is unnecessary to here again recite or state these matters.

Article 1195 prescribes that when the grand jury indicts a male under 17 years of age with a felony, he or any one interested for him before trial can set up by proper affidavit that he is a juvenile under 17 years of age, and directs the court to hear the testimony, and if he is under such age that the criminal proceeding against him shall be dismissed and that he be proceeded against as a juvenile. Article 1199 prescribes that all proceedings under the delinquent child act shall be begun by sworn complaint and information filed by the county attorney, as in other cases under the law, and that in such pleading the act claimed to have been committed by the child shall in a general way be stated, as constituting such child a delinquent child; in other words, as we understand the law, if the court, as in this instance, finds that the party charged with a felony is a male juvenile under 17 years of age, and dismisses the criminal action against him, then it would be improper to further proceed against him as a delinquent under said indictment, but that it is essential under such circumstances that the prosecuting officer shall then file a complaint and information alleging that the party is a delinquent and charging wherein he is a delinquent. That was not done in this instance. It was the proper, and only proper, way to have proceeded against the applicant herein after the court had dismissed the indictment against him. He could be proceeded against in either the district or county court. Of course, if proceeded against in the district court, the proper pleading should be preferred by the district attorney if he is present during the term of the court. If he declines to do so, then the county attorney can proceed against him in the eoun- ' ty court, or in the district court if he and not the district attorney is conducting the proceedings in the district court. As a delinquent under such circumstances cannot appeal, his remedy is by habeas corpus to this court, as was held in said Bartee Case, supra. These proceedings against a delinquent, especially after indictment found, are of such a criminal or quasi criminal nature that this court upon proper showing has power and authority to grant and hear the cause on habeas corpus. Ex parte Bartee, supra, 76 Tex. Cr. R. 285, 174 S. W. 1057.

In our opinion, the judgment of the district judge recited above, adjudging appellant guilty of burglary, sentencing him to confinement in the Gatesville school, and remanding him to the custody of the sheriff of Lee county, was without authority and void, and the writ of habeas corpus applied for herein is granted and ordered issued. The applicant has been held so long now that if no proceedings charging him as a delinquent by proper complaint and information have been filed, it is further ordered that he be discharged from custody by the sheriff of Lee county. This does not prevent the proper authorities from proceeding against him as a delinquent.

There is no other question necessary to be decided or discussed herein. The disposition we have made of this proceeding concludes the cause.

The writ of habeas corpus is granted and ordered issued, with instructions. 
      <S=jToi other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     