
    MEGGS v. STATE.
    (No. 9430.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    1. Infants <&wkey;!6 — Count of complaint, in proceeding to adjudge appellant delinquent, held insufficient.
    In a proceeding to adjudge appellant a delinquent child, count in complaint reading “that the said * * * [appellant] was then and there and is incorrigible,” held insufficiently specific to sustain conviction as lacking averments susceptible of proof describing conduct rendering appellant incorrigible.
    2. Infants <&wkey;>lfi — Count in complaint held sufficient averment charging delinquency. .
    In a proceeding to adjudge appellant a delinquent child, a count charging that appellant did then and there habitually wander about the streets of the city of Port Worth, in the nighttime, without being on any business or occupation, held sufficient.
    3. Infants <&wkey;>16 — Single or occasional acts of roaming streets at night, as distinguished from “habitual” roaming, do. not constitute “delinquency.”
    Single or occasional acts of roaming streets at night, as distinguished from “habitual” roaming, do not constitute “delinquency,” within Vernon’s Code Cr. Proc. 1920, art. 1197; Acts 35th Leg. (1918) 4th Called Sess. c. 26, § 1 (Vernon’s Ann. Code Cr. Proc. Supp. 1922, art. 1197); Code Cr. Proc. 1925, art. 1093; the word “habitual” meaning formed or acquired by or resulting from habit; frequent use or custom.
    [Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Delinquency; Habitual.]
    4. Infants &wkey;> 16 — Evidence held insufficient to sustain conviction for being delinquent child.
    Evidence held insufficient to sustain conviction for being delinquent child, within Vernon’s Code Cr. Proc. 1920, art. 1197; Acts 35th Leg. (1918) 4th Called Sess. c. 26, § 1 (Vernon’s Ann. Code Cr. Proc. Supp. 1922, art. 1197); Code Cr. Proc. 1925, art. 1093.
    Appeal from Tarrant County Court; H. S. Lattimore, Special Judge.
    Johnie Meggs was adjudged a delinquent child, was committed to the Boys’ Training School, and he appeals.
    Reversed and cause remanded.
    See, also, 269 S. W. 790.
    Harry Myers, of Port Worth, for appellant.
    
      Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORKOW, P. J.

The appellant was adjudged a delinquent child and was committed to the Boys’ Training School at Gates-ville, Tex., for a period of five years.

The complaint contains two counts. The first reads thus: “That the said Johnie Meggs was then and there and is incorrigible.” This count is not sufficiently specific to sustain the conviction, in that it is bare of averments susceptible of proof describing the conduct rendering the appellant incorrigible. See Hogue v. State, 87 Tex. Cr. R. 171, 220 S. W. 96; Guerrero v. State, 87 Tex. Cr. R. 260, 220 S. W. 1095; Ex parte Roach, 87 Tex. Cr. R. 370, 221 S. W. 975.

The other count charges that the appellant “did then and there habitually wander about the streets of the city of Fort Worth, in the .nighttime, without being on any business or occupation.” This is a sufficient averment. Guinn v. State, 88 Tex. Cr. R. 509, 228 S. W. 233.

The assistant probation officer found the appellant at the home of his mother. The officer described the house as filthy, and said that the appellant was sleeping on the floor among rags and with his dog and cat. She said further:

“Johny does not go to school and is often seen with a one-eyed man there, who has been involved in various violations of the law. He roams the. streets at nights.”

Appellant testified that he made money by holding horses for traders and caddying; that he went out at nights whenever he wanted to; that he slept on the floor with his dogs and cat as a matter of preference; that he could have slept on the bed if he desired.

No other matters are found in the statement of facts which bear upon the specific grounds of delinquency which are sufficiently embraced in the complaint.

The assistant probation officer did not testify that she saw the appellant roaming the streets at night, nor that he was without occupation. Appellant testified that he made money holding horses and caddying and that he went out at nights when he wanted to. Under the law, a charge of delinquency must be proved with the same degree of certainty as any other criminal charge. The statute makes it a criminal procedure. See article 1197, Vernon’s Tex. Crim. Stat. 1920; Acts of 35th Leg. 1918, 4th Called Session, c. 26, § 1 (Vernon’s Ann. Code Cr. Proc. Supp. 1922, art. 1197). See, also, Revised C. C. P. 1925, art. 1093.

Proof that the appellant went out at nights and’ that he was not pursuing any occupation is entirely absent. Neither do we find any evidence that he “habitually” roamed the streets at night. The word “habitual” means “formed or acquired by or resulting from habit; frequent use or custom.” See Hilton v. State, 41 Tex. Cr. R. 190, 53 S. W. 113. Single or occasional acts do not meet the requirement of the statute. Boswell v. State, 48 Tex. Cr. R. 47, 85 S. W. 1076, 122 Am. St. Rep. 731; O’Kane v. O’Kane, 103 Ark. 382, 147 S. W. 73, 40 L. R. A. (N. S.) 655.

In the absence of more cogent proof of the substance of the averment in the complaint upon which the conviction rests, we feel constrained to order that the judgment be reversed, and the cause remanded, which is accordingly done. 
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