
    MEGGS v. STATE.
    (No. 10177.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1926.
    Rehearing Denied Feb. 23, 1927.)
    1. Criminal law <@=>750 — Child prosecuted for delinquency, who pleaded guilty, could not, after denying several acts charged, require their withdrawal from jury.
    In prosecution of child for ‘delinquency, charging association with vicious persons, habitual wandering about streets, and theft, where defendant entered plea of guilty, fact that he subsequently testified that some acts charged against him were never committed did not require withdrawal of acts charged from jury’s consideration, as under plea of guilty sufficiency of evidence to sustain guilt was not in issue, unless evidence was such as to affirmatively show defendant was not guilty.
    2. Criminal law <@=>273 — After plea of guilty, sufficiency of evidence to sustain conviction is not in issue.
    Plea of guilty, being admission, sufficiency of evidence to sustain conviction is not thereafter in issue, unless evidence affirmatively shows innocence.
    3. Infants <@=>16 — In prosecution for juvenile delinquency, failure to instruct on issue of suspended sentence under revision in force at time of trial, which omitted reference to suspended sentence, held not error (Code Cr. Proc. 1925, arts. 1083-1093; Vernon’s Ann. Code Cr. Proc. 1916, arts. 865b, 1195, and art. 1197, as amended by Acts 35th Leg. 4th Called Sess [1918] c. 26).
    In prosecution of child for delinquency, failure to instruct jury on issue of suspended sentence held not error, where Code Or. Proc. 1925, arts. 1083-1093, which changed juvenile delinquency law by omitting reference to suspended sentence law, embraced in Vernon’s Ann, Code Or. Proc. 1916, art. 1195, was in effect at time of trial, as procedure in force at trial was controlling, suspended sentence law, under article 865b, Vernon’s Ann. Code Cr. Proc. 1916, being applicable to conviction of felony, whereas juvenile law, Vernon’s Ann. Code Cr. Proc. 1916, art. 1197, as amended by Acts 35th Leg. 4th Called Sess. (1918) c. 26, put all juvenile delinquencies upon footing of misdemeanors, with privilege of having jury determine whether or not sentence should Re suspended.
    4. Criminal law <g=c>633 (I) — Procedure in forte at time of trial controls.
    Procedure in force at time of trial is controlling.
    5. Criminal law @=»l 173(3) — Failure to instruct that maximum penalty for juvenile delinquency was five years held cured by verdict.
    In prosecution for juvenile delinquency, failure to instruct jury, that limit of penalty was confinement for five-year period, if error, held cured by verdict.
    Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.
    Johnie Meggs was convicted as a delinquent child, and he appeals.
    Affirmed.
    Harry Myers, of Port Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   MORROW, P. J.

The appellant is under conviction as a delinquent child.

The complaint and information contain several counts, one of which charged that the- appellant associated with thieves, vicious and immoral persons; another that he habitually wandered about the streets at nighttime without any business or occupation; another that he committed theft of a watch of the value of $25; another that he carried a pistol on or about his person. The count charging that he carried a pistol was specifically withdrawn from the jury.

The appellant was tried before a jury upon a plea of. guilty, the verdict adjudging him a delinquent and ordering his confinement in the State Juvenile Training School at Gates-ville, Texas, for a period of from one to three years. He was tried in November, 1925. Some of the acts charged occurred in October, 1924. A recital of the evidence upon which the conviction rests is deemed unnecessary. Suffice it to say that it was quite sufficient to show that he was a delinquent child.

There are many exceptions to the court’s charge which are deemed untenable. The appellant having entered a plea of guilty, the fact that he subsequently testified that there were some acts charged against him in the information which were not committed by him would not require a withdrawal of the fact from the consideration of the jury. Having by his plea of guilty admitted his guilt, the sufficiency of the evidence to sustain it was not in issue, unless the evidence was such as to affirmatively show that he was not guilty. Connor v. State, 93 Tex. Cr. R. 255, 246 S. W. 374, and eases therein cited.

Appellant insists that title 16, C. C. P., Revision of 1925, changed the juvenile delinquency law by omitting therefrom the reference to the suspended sentence law which was embraced in the old article 1195, Vernon’s Tex. Crim. Stat. 1916, vol. 2, and that his trial should have been governed by' the old law, and that consequently, in failing to instruct the jury on the issue of suspended sentence, the court was in error.

Under the amendment to the juvenile law embraced in chapter 26, Acts of 35th Leg. 4th Called Session, the distinction between juvenile delinquents who are charged with acts upon which there might be founded a felony conviction and those charged with acts which would be no more than a misdemeanor seems to have been abandoned. All were put upon the footing of misdemeanors, with the privilege, however, of having the jury determine whether or not the sentence should be suspended. See Ex parte Roach, 87 Tex. Cr. R. 370, 221 S. W. 975; Ex parte Gordon, 89 Tex. Cr. R. 125, 232 S. W. 520. The law of suspended sentence, however, is found in article 865b, C. C. P. (Vernon’s Tex. Crim. Stat. 1916, vol. 2, p. 857), and the validity seems to have been sustained upon the theory that it was a matter of procedure — that is, directing that upon certain findings of the jury the trial should be suspended and the cause continued and reopened upon the happening of certain contingencies. Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998. See Snodgrass v. State, 67 Tex. Cr. R. 615, 150 S. W. 162, 41 L. R. A. (N. S.) 1144, wherein a statute, which was not one of procedure, was held invalid. In the statute, as revised in 1925, the reference to the suspended sentence in the juvenile law is omitted. See title 16, C. C. P. The revision was in effect at the time the appellant was tried, and the procedure then in force was controlling. See Askew v. State, 59 Tex. Cr. R. 152, 127 S. W. 1037; James v. State, 72 Tex. Cr. R. 457, 163 S. W. 61; Mrous v. State, 31 Tex. Cr. R. 597, 21 S. W. 764, 37 Am. St. Rep. 834; Hopt v. People of Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262.

The position taken is that under the law the limit of the penalty was confinement for a period of five years, and that in failing to so instruct the jury prejudicial error was committed. If it be granted that this was error (which is not done) it was cured by the verdict. See Thompson v. State, 91 Tex. Cr. R. 234, 237 S. W. 928; Billings v. State, 92 Tex. Cr. R. 628, 245 S. W. 236.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant- asks in his motion that we consider his bills of exception, which bring forward complaint of certain evidence received and things occurring during the trial, which bills were not discussed in our former opinion. We have examined all the bills and in connection with them again reviewed the evidence. In view of the plea of guilty entered and the evidence found in the record, it is not thought the matters complained of call for a reversal of the judgment.

The motion for rehearing is overruled. 
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