
    MILLER v. STATE.
    (No. 4628.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.
    On Motion for Rehearing, Jan. 16, 1918.)
    1. Criminal Law <&wkey;13 — Juvenile Delinquency — Statute — Certainty — Validity — “Delinquent Child.”
    The juvenile delinquent law (Vernon’s Ann. Code Cr. Proc. 1916, art. 1195 et seq.), providing that when a male under 17 charged with, a felony shall file a sworn written statement that he is under that age, the prosecution for felony shall be dismissed, and ho shall be tried under the complaint and information as a delinquent, and that if found to be a delinquent, and if sentence is not suspended, he shall be committed to the state industrial home for boys upon an indeterminate sentence not extending beyond his majority, defining a delinquent child to<include any male under that age who is incorrigible or who associates with vicious or immoral persons, and idles around saloons, railroad stations, yards, etc., protecting him in his right to a trial by jury, requiring the proceeding to be begun by sworn complaint and information, prescribing the requisites of the complaint, and providing for notice, service, and for commitment, is not so unintelligible and uncertain within Pen. Code 1911, art. 6, as to be invalid.
    [Ed. N'ote. — For other definitions, see Words and Phrases, First and Second Series, Delinquent Child.]
    2. Indictment and Information <@=3125(2) — Juvenile Delinquent — Duplicity.
    An information charging that defendant, a male child under the age of 17, broke and entered a house with intent to take personal property without the owner’s consent, and to appropriate it, that he fraudulently took a bicycle from another’s possession with intent to appropriate it to his own use, that he broke and entered another house fraudulently, intending to take personal property therefrom to his own use, which acts constituted him a delinquent child within the juvenile delinquent law, was not duplicitous as charging felonies and misdemeanors, as none of them charged him with a felony because of his age.
    3. Criminal Law &wkey;sll72(7) — Appeal — Harmless Error — Instruction as to Punishment oe Juvenile Delinquent.
    In a proceeding under such law on an information charging- defendant with being a delinquent child, an instruction that he might be committed to the state juvenile training school for an indefinite time, not exceeding 5 years, and that the jury should fix the term, though erroneous, as the juvenile delinquent law fixes the commitment to a time not beyond his majority, was in defendant’s favor, and presented no error.
    4. Criminal Law <&wkey;1184 — Appeal—Commitment oop Juvenile Delinquent — Correction on Appeal.
    In such proceeding, where the verdict found the defendant a delinquent who should be committed to the juvenile training school for a term of five years, a judgment of delinquency, and that he be committed to the state industrial school for boys for that term, would, under Code Cr. Proc. 1911, art. 938, be reformed on appeal so as to conform to the verdict, where there was no doubt that the verdict and judgment meant the state industrial school for boys.
    On Motion for Rehearing.
    5. Infants i&wkey;18 — Jurisdiction — Court of Criminal Appeals.
    The Court of Criminal Appeals has no jurisdiction on habeas corpus or appeal therefrom or otherwise to inquire into or determine the restraint and custody of a minor under an order of any probate or district court; all of such matters being exclusively civil and within the exclusive jurisdiction of the civil courts.
    6. Infants <&wkey;16 — Juvenile Delinquency Law — Nature of Proceeding.
    A prosecution and conviction under the juvenile delinquency law is a criminal and not a civil case.
    7. Criminal Law c&wkey;l017 — Habeas Corpus <&wkey;4 — Appeal — Juvenile Delinquency Proceeding — Nature of Remedy.
    An appeal lies from a conviction under the juvenile delinquent law directly to the Court of Criminal Appeals, and, for any claimed error in such trial, an appeal should be resorted to, and not a writ of habeas corpus.
    8. Infants ¡&wkey;20 — Juvenile Delinquent — JUD GHENT — Re VERSAL.
    A judgment in a proceeding under the juvenile delinquent law, finding a boy of 10 or 11 years of age to be a delinquent and committing him, conflicted with Pen. Code 1911, art. 34, providing that no one shall be convicted of any offense, other than perjury, between the years of 9 and 13, unless it is shown that he had discretion suflicient to understand the nature and legality of the act constituting the offense, so that where there was no such showing the judgment would be reversed.
    9. Infants <&wkey;16 —Juvenile Delinquent — Evidence.
    . In such proceeding, testimony of the sheriff that he had had defendant in jail several times for petit theft, and that he did not know when the cases were tried, or know that he ever stole anything, was admissible as tending to prove the state’s main case against him.
    Appeal from Guadalupe County Court; J. B. Williams, Judge.
    Le Roy Miller was convicted of being a juvenile delinquent, and be appeals.
    Reversed and remanded.
    H. E. Short and Jas. Greenwood, both of Seguin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The information herein, which was based on a proper complaint, after the formal parts, which were regular, alleged that:

“On or about the 23d day of April, A. D. 1917, in the said county of Guadalupe and state of Texas, one Le Roy Miller, a male child under the age of 17 years, did then and there unlawfully by force, fraud, and threats break and enter a house occupied by Geo. J. Kempen, with the intent then and there to fraudulently take corporeal personal property belonging to said Geo. J. Kempen therein situated, without the consent of the said Geo. J. Kempen, and with the intent to appropriate it to the use and benefit of him, the said Le Roy Miller, and with the intent to deprive the said Geo. J. Kempen of the value thereof; said act constituting said child a delinquent child. And the said Le Roy Miller on or about the 23d day of April, A. D. 1917, in the said county and state aforesaid, then and there being a male child under the age of 17 years, did then and there fraudulently take from the possession of Leo Boyle one bicycle of the value of $15, the same being the corporeal personal property of the said Leo Boyle, -without the consent of the said Leo Boyle, with the intent to deprive the said Leo'Boyle of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Le Roy Miller; said act constituting said child a delinquent child. And the said Le Roy Miller on or about the 23d day of April, A. D. 1917, in the said county and^state aforesaid, then and there being a male child under the age of 17 years, did then and there unlawfully by force, fraud, and threats break and enter a house occupied by Will Dibrell with the intent then and there to fraudulently take corporeal personal property belonging to said Will Dibrell, and situated in the said house without the consent of the said Will Dibrell, and with the intent to deprive the said Will Dibrell of the value thereof, and with the intent to appropriate the same to the use and benefit of him, the said Lo Roy Miller; said act constituting said child a delinquent child. And E. Schwoppe, county attorney for said county, presents to said court that the said Le Roy Miller, then and there being a male child under the age of 17 years, was then and there a child who violated the laws of the state of Texas, by committing petty thefts, and violated the city ordinances of the city of Seguin, Tex., by wandering about the streets after 9 o’clock p. m. during the nighttime, and the said Le Roy Miller was then and there a male child under the age of 17 years, who is incorrigible by failing and refusing to obey his parent and persons who had control over his person and acts, and failing and refusing to attend school, and by disobeying his teachers; said acts constituting said child a delinquent child.”

The court did. not err in overruling appellant’s motion to quash, this information <m the grounds: (1) Because the juvenile laws are unintelligible and not operative, and in violation of article 6, P. G.; (2) because the information is duplicitous and charges felonies and misdemeanors; (3) and because the juvenile laws do not provide any intelligent mode of procedure whereby a delinquent child can be legally tried, and any trial thereunder is a farce. It has all the time, and in many cases, been held that said laws (articles 1195 to 1207b, inclusive, 2 Vernon’s Grim. Stats.) are not void under article 6, P. G.

The proof shows appellant was only 10 or 11 years old when tried. Article 1197, O. O. P., defines who is a delinquent child, and what acts he commits make him such. The different counts in said information allege the commission of the several acts which made appellant a delinquent child. None of them charge him with a felony because of his age. Article 1195 requires the proceeding to be begun on complaint and information, which is as was done herein. The testimony of the state was ample to show he had committed the acts alleged, which authorized the jury to find him to be a delinquent.

The court in charging the jury told them the law'provides that a “delinquent child may be committed to the state juvenile training school for an indeterminate period not exceeding five years”; and if they believed from the evidence beyond a reasonable doubt he had committed the acts alleged, or any of them, “you will find him a delinquent child and order him committed to” said school “for an indeterminate period not exceeding five years.” The court was in error in telling the jury they could have him committed “not exceeding five years.” The law is for a time not beyond a time when he shall arrive at 21 years of age. But appellant made no objection before the tral was concluded, and as the charge in this respect was in his favor, this charge presents no error.

The verdict was:

“We, the jury, find the defendant, Le Roy Miller, a delinquent, and have him committed to the juvenile training school for a term of five years.”

Upon this verdict the court entered a judgment:

“That the defendant, Le Roy Miller, be and is hereby adjudged a delinquent child, and that he be placed in charge of the sheriff who shall forthwith commit him to the state industrial school for boys for a. term of five years.”

The appellant complains that the judgment entered did not conform to the verdict nor the law in that it was not for an indeterminate time. He concedes that while in some cases this court has reformed and affirmed a judgment, that it cannot do so in this instance. We think that this court can reform this judgment under the statute and decisions. Article 938, G. C. P., and decisions thereunder. The judgment herein will be reformed by this court so as to conform to the verdict in the particulars named.

The name of the school or institution at Gatesville has been changed from time to time by statute. There can be no doubt from the charge of the court, verdict, and judgment that the institution at Gatesville, providing for the training of male juveniles, was meant and intended so that while therein said institution is called the “juvenile training school” that would be no ground for a reversal of the judgment herein. Such calling it would Undoubtedly be embraced within the said juvenile statute.

Appellant has only one bill of exception, which is to the effect that the court permitted this testimony by Wm. Neubauer, to be given over his objections, viz;

“I have had the defendant, Le Roy Miller, in jail several times for petty theft. He has been convicted for stealing several times. I do not remember when these cases were tried, or any of the facts connected with them. I do not know of my own knowledge that he ever stole anything.”

Appellant’s objections were that it was not the best evidence of these convictions, that the record thereof would be the best evidence, and that it was hearsay. This testimony did not purport to be, and was not, the contents of any record of a previous prosecution of appellant. It was not hearsay, "because tbe witness was sheriff and testified he knew as a fact that appellant had been in jail several times for petty theft. He also knew as a fact that he had been convicted of stealing several times, altnough he knew nothing personally of the thefts themselves. It has all the time, and in a great number of cases, been held that a defendant or any witness may be impeached by proving by him that he had been indicted or convicted for a felony or a misdemeanor involving moral turpitude; that for that purpose it was unnecessary to produce and introduce the 'judgment of conviction. 1 Branch’s P. O. § 167, and- cases cited. This principle and these authoritites are applicable herein by analogy.

The clerk of this court will enter a judgment reforming the judgment of the court below, and adjudging the appellant a delinquent child, and that he be confined in the state institution for the training of male juveniles for an indeterminate period not to exceed 5 years from the date of his said conviction, and as so reformed the judgment will be affirmed.

On Motion for Rehearing.

There have been quite a number of cases arising under our delinquent child and juvenile statutes before this court. Various phases of the statutes have been discussed and determined. This is the first case where a direct appeal from a trial and conviction of an accused as a delinquent child has been brought to this court. The other cases have been where this court granted an original ha-beas corpus or entertained an appeal from a trial below on a habeas corpus. The reason for entertaining this direct appeal was not discussed in the original opinion. Perhaps it should have been. We take occasion to do so briefly at this time. Unfortunately, as this writer believes, the decisions of this court on these matters have not been uniform, but somewhat conflicting, it seems, rendering the law and its enforcement more complicated and uncertain than some claim the statute itself to be. At the time this case was under consideration and consultation there were several other cases involving our delinquent child and juvenile statute law also under consideration and consultation. Among them were No. 4591, Ex parte Ethel McCloud, 200 S. W. 394, from Harris, and No. 4652, Ex parte Walter Pruitt, 200 S. W. 392, from Menard, counties. While the opinion in this and other cases were handed down on different dates, they were all at the time considered together.

It has been uniformly and many times held both by this court and our civil courts that this court has no jurisdiction by habeas corpus or appeal therefrom, or otherwise, to inquire into or determine the restraint and custody of a minor who is so restrained or in custody under an order of any probate court or district court in divorce proceedings or any person adjudged insane; that all such matters are exclusively civil, and the civil courts alone have jurisdiction to determine and adjudge all such questions. Ex parte Reed, 34 Tex. Cr. R. 9, 28 S. W. 689; Ex parte Berry et al., 34 Tex. Cr. R. 36, 28 S. W. 806; Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Telschek v. Fritsch, 38 Tex. Cr. R. 43, 40 S. W. 988; Ex parte Calvin, 40 Tex. Cr. R. 84, 48 S. W. 518; State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S. W. 901; Rice v. Rice, 24 Tex. Civ. App. 506, 59 S. W. 941; Ex parte Reeves, 100 Tex. 617, 103 S. W. 478; Pittman v. Byars, 51 Tex. Civ. App. 83, 112 S. W. 102; Ex parte Fuller, 58 Tex. Civ. App. 217, 123 S. W. 204; Finney v. Walker, 144 S. W. 679; Hall v. Whipple, 145 S. W. 308; Ex parte Singleton, 72 Tex. Cr. R. 123, 161 S. W. 123.

In Ex parte McDowell, 76 Tex. Cr. R. 1, 172 S. W. 213, it was held by this court in substance and effect that a prosecution and conviction as a delinquent child under our delinquent child statutes was a criminal proceeding and not a civil, and that in the event a child thereunder was illegally restrained of his liberty the writ of habeas corpus was available to him in the criminal courts. In Ex parte Bartee, 76 Tex. Cr. R. 289, 174 S. W. 1051, Bartee had been adjudged a delinquent child, his offense being a misdemeanor, ordered restrained in the industrial school for boys at Gatesville, confined therein, and escaped therefrom. On being arrested because of his escape to be returned by the officer to said Gatesville school under said conviction, he sued out a writ of habeas corpus before the district judge, who, upon hearing, remanded him to custody, from which he appealed to this court. In that case this court held that a conviction under said statute was not for a criminal offense, and that such proceeding was in the nature of, if not entirely, a probate proceeding only. However, in that case this court entertained jurisdiction of that appeal. It could not have done so if the proceeding had been a civil case only. It was by reason of the fact that it was criminal in its nature that this court could and did entertain jurisdiction. Again, in that case it was held, in passing on the authorities cited by the Assistant Attorney General from other states, that;

“We do not think an appeal would lie to this court from a trial adjudging one a delinquent child, but that on habeas corpus an appeal would lie, or we would have authority to issue an original writ to determine whether or not one had been tried in accordance with the provisions of this law, and whether or not one was illegally restrained of his liberty.”

There was therefore a seeming, if not a real, conflict between the holdings in the McDowell and Bartee Gases.

In reviewing these and other cases and our statutes on the subject of a delinquent child in said Walter Pruitt Case, 200 S. W. 392, and said McCloud Case, 200 S. W. 394, it was in substance and effect held that a prosecution and conviction under said delinquent child statutes was a criminal proceeding; and in the McCloud Case it was expressly held that an appeal from a conviction under said statute would lie directly to this court. So that this writer, in writing the original opinion herein, without discussing the matter, followed the holding of his Associates in said cases and acted thereon.

It may therefore be regarded as settled now by this court: (1) That a prosecution and conviction under our delinquent statutes is a criminal, and not a civil, case; (2) that an appeal lies from a conviction thereunder directly to this court, and that for any claimed error in such trial an appeal should he resorted to, and not a writ of habeas corpus; (3) that after a reasonable time from the publication of this decision an original application to this court for a habeas corpus will be denied, and the accused required to resort to his remedy of appeal.

Now we come to discuss the questions raised by the- motion for rehearing herein. For the first, time in his motion and argument for rehearing he calls our attention to article 34, P. C., which is:

“No person shall in anv case be oonvicted of any offense committed before he was of the aae of nine years, except perjury, and for that only when it shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath: nor of any other offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.”

This not only escaped our attention in the consideration of the case, hut it must also have escaped the attention of the trial court and the attorneys on both sides, and it was only suggested, as stated, at this late hour. However, it goes to the very foundation of the conviction. The accused herein by the uncontradicted testimony was shown to be only 10 or 11 years of age. There is no proof in the record which shows that he had discretion sufficient to understand the illegality of the several acts alleged to constitute the offense against him. The result is that the judgment must be reversed on this ground. See the decisions under this article in 1 Vernon’s Crim. Stats.

We have also concluded that we were in error in holding that the testimony objected to, shown in the original opinion, of the sheriff, Mr. Neubauer, was admissible under the circumstances. We now believe and hold that this testimony was inadmissible. 1 Branch, Ann. P. C. p. 99. It was admitted before appellant had testified, and not solely to impeach him, hut to tend to prove tho state’s main case against him. It is not intended, however, on this point, to hold that a witness, or the accused himself, when he testifies, cannot be impeached by showing he has been convicted of theft, within a reasonable time before the prosecution. For such evidence would be admissible for impeachment. 1 Branch, Ann. P. C. § 107.

For the errors above pointed out, the rehearing is granted, and the case now ordered reversed and remanded. 
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