
    VALDEZ v. STATE.
    (No. 8308.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.)
    1. Criminal law <§==>1099(5) — Statement of facts bringing forward evidence on motion for new trial, having been filed after adjournment of trial term, not considered.
    The statement of facts bringing forward evidence presented on motion for new trial, not having been filed until after adjournment of trial term, may not be considered.
    2. Infants <§=>681 — Juvenile may waive right to be prosecuted as such.
    A juvenile may waive right to be proceeded against as such.
    3. Criminal law <§=>913(1) — New trial too late to raise question of juvenility.
    . The questión of juvenility of defendant, tried as an adult, in the absence of fraud perpetrated against him, may fiot be raised for first time in motion for new trial.
    4. Infants <§=>68 — Juvenility preliminary question before plea to indictment.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 1195, the question of juvenility of defendant is a preliminary one, to be presented to and passed on by judge, on proper sworn statement, before plea to the indictment.
    5. Affidavits <§=>5 — Motion not considered where verified before, defendant’s counsel.
    Defendant’s affidavit, by which ground of motion for new trial was attempted to be verified, being taken before his counsel, cannot be considered; and the ground of motion thus attempted to be verified formed no basis for evidence on bearing of the motion.
    Appeal from District Court, Gonzales County; Lester Holt, Judge.
    Marisio Valdez was convicted of murder, and appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. .State’s Atty., both of Austin, for the State. '
   HAWKINS, J.

Appellant is under conviction for the murder of Bartola Nigrite with, punishment assessed at ten years in the penitentiary.

We deem it unnecessary to set out the facts. The state’s evidence showed a hilling under circumstances which eliminated manslaughter and self-defense or defense of another. Appellant’s evidence raised the issues of defense of his father and of manslaughter. They were fairly submitted in the court’s charge.

It is stated in the motion for new trial that since conviction information had come to counsel for appellant that he was under 17 years of age. This ground of the motion was not verified. Some evidence relative to the matter appears to have been presented upon hearing the motion, but the statement of facts bringing it forward was not filed until long after adjournment of the trial term. To be considered it must have been filed before adjournment: Slade v. State, 85 Tex. Cr. R. 358, 212 S. W. 661. It has been held that a juvenile may waive his right to be proceeded against as,such (Slade v. State, supra; Fifer v. State, 90 Tex. Cr. R. 282, 234 S. W. 409, 410, 411), and in the absence of some fraud perpetrated against him we hold that ordinarily the question of juvenility cannot be raised for the first time in motion for new trial. The question is one of preliminary character to be presented to and passed upon by the trial judge upon proper sworn statement before plea to the indictment is entered. Article 1195, Vernon’s Ann. C. O. P. 1916; Robertson v. State, 92 Tex. Cr. R. 350, 243 S. W. 1098. No sworn statement that appellant was a juvenile (as required by the statute) was made either by his parents or himself, although the fact, if it be a fact, was bound to have been known to all of them before the trial.

Another ground of the motion for new trial was that the interpreter either misunderstood or misinterpreted a question propounded to appellant by his attorney, or misunderstood or misinterpreted appellant’s answer upon a vital issue in the case. This ground of the motion is attempted to be verified by appellant’s affi*davit taken before Geo. Eouts as .notary public. • It affirmatively appears from the record that said Eouts was counsel for appellant, and this is called to our attention in the state’s brief. The affidavit so taken cannot be considered, and ground of the motion thus attempted to be verified formed no basis for evidence offered upon hearing the motion. See authorities collated under article 840, Vernon’s C. C. P., note 10; also, Steele v. State, 87 Tex. Cr. R. 588, 223 S. W. 473; Kellum v. State, 91 Tex. Cr. R. 664, 240 S. W. 1109; Siebe v. State, 92 Tex. Cr. R. 605, 244 S. W. 1013. Furthermore, the evidence heard upon this ground of the motion, and brought forward in a statement of facts, was not filed during the trial term, and if its reception had’been authorized under the motion it could not be considered because not filed before court adjourned. Slade v. State, supra. Also see Reese v. State, 94 Tex. Cr. R. 220, 249 S. W. 857, in which many authorities are collated.

The judgment is affirmed. 
      <g=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     