
    ROBERTSON v. STATE.
    (No. 6991.)
    (Court of Criminal Appeals of Texas.
    June 21, 1922.
    Rehearing Denied Oct. 11, 1922.)
    1. Infants @==>68 — Question of accused infant’s age held for the judge as a preliminary matter.
    Tinder Vernon’s Ann. Code Cr. Proc. 1916, art. 1195, providing that, where an indictment is returned charging a male under the age of 17 with a felony, such person or his guardian, parent, attorney, or next friend may file a sworn statement setting forth his age at any time before cause is ready for trial, where such statement is filed, the judge shall hear the evidence and determine the question as a preliminary matter, and he has wide discretion.
    2. Infants <⅜=>68 — Evidence held not to show an abuse of discretion in declaring defendant over 17 years of age.
    In a prosecution for burglary, evidence held not to show an abuse of discretion under Vernon’s Ann. Code Cr. Proc. 1916, art. 1195, in declaring defendant over 17 years of age.
    3. Criminal law <©=>814(8, 9) — Instruction that defendant should he acquitted if he was influenced by an accomplice held properly refused.
    In a prosecution for burglary, an instruction that, if defendant was influenced by his accomplice to such an extent as to render him incapable of cool reflection, and of the control of his normal mind and actions, he should be acquitted, was properly refused where there was no evidence tending to show that defendant was under any such duress as set out in Vernon’s Ann. Pen. Code 1916, art. 44, as would relieve him of criminal responsibility.
    On Motion for Rehearing.
    4. Infants @=»68 — Refusal to grant continuance for absence of witness held not error.
    The refusal to grant defendant a continuance of hearing as to his age because of the absence of certain witnesses was not error where it did not appear that the testimony of the absent witnesses would shed any light upon any material issue in the case.
    Appeal from District Court, Matagorda County; M. S. Munson, Judge.
    Otho Robertson was convicted of burglary, and he appeals.
    Affirmed.
    John F. Perry, of Bay City, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for a burglary with punishment assessed at two years’ confinement in the penitentiary.

Appellant filed an affidavit that he was under 17 years of age. This issue was set down for hearing by the trial judge, and determined against appellant, after which he was placed on trial upon the merits of the case.

Appellant raises the question that he was deprived of his constitutional right of trial by jury, contending that he was entitled to a jury to determine the issue of his ago as a preliminary matter, or that the issue should have been submitted to the jury trying the case upon the merits along with the other issues raised by the evidence. We copy from article 1195, Vernon’s Ann. Code Cr. Proc. 1916, the following provision:

“When an indictment is returned by the grand jury of any county charging any male juvenile under the age of seventeen years with a felony, the parent, guardian, attorney or next friend of said juvenile, or said juvenile himself, may file a sworn statement in court, setting forth the age of such juvenile, at any time before announcement of ready for trial is made in the case. When such statement is filed) the judge of said court shall hear evidence on the question of the age of the defendant; and, if he be satisfied from the evidence that said juvenile is less than seventeen years of age, said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent, under the provisions bf this act.”

It is apparent from the statute just quoted that it was the purpose of the Legislature that the judge should determine the question of accused’s age as a preliminary matter, and, if he should be satisfied that accused was less than 17 years of age, the prosecu-tion should be dismissed, and accused be proceeded against as a juvenile delinquent. In construing this statute the decisions are against appellant’s contention, as will be seen by a reference to Lee v. State, 86 Tex. C. R. 146, 215 S. W. 326; Jefferson v. State, 85 Tex. Cr. R. 614, 214 S. W. 981; Flores v. State, 89 Tex. Cr. R. 506, 231 S. W. 786; McRuffin v. State (No. 5899; Tex. Cr. App.) 240 S. W. 309, opinion delivered April 26, 1922.

We gather from appellant’s bill of exception that he is complaining because the court failed to grant,him a continuance to secure the testimony of his father and mother, and also the family Bible, upon the issue of his age. The court qualifies the bill by stating that when he ordered a hearing upon that issue appellant announced ready for trial, and introduced his father, J. S. Robertson, as a witness, who testified that appellant was born November 12, 1905. If this testimony was true, then appellant was under 17 years of age at the time of the instant trial. It is made to appear, however, from the bill that a question arose as to the correctness of his father’s statement, it being contended by the state that he was born in November, 1904. The court postponed the hearing upon the issue of appellant’s age until 9 o’clock the next morning, and direet-e'd appellant’s father to produce the family Bible at that time. The witness failed to appear at the designated time, and application for continuance was presented, claiming that after he had returned home the day before he had been taken sick. The application states that a physician was present in court who would testify to that fact, but the trial judge certifies that neither the testimony of the doctor nor his affidavit to that effect was presented to the court to explain the absence of the witness. As part of the explanation to the bill the trial judge says appellant’s father had told him the day before that appellant was under 17 years of age when the offense was committed, but was now over 17. Upon being informed that it was the age at, the time of trial that would control, he said he might be mistaken as to the date of birth. This conversation was in no way shown upon the hearing, and seems to have been a private conversation between the trial judge and appellant’s father, a matter which the judge in his judicial capacity could not certify into the record. We find, however, from the record that other evidence was offered upon the issue of appellant’s age, and the court says that,' being fully satisfied upon the evidence introduced that appellant was over 17 years of age at the time of the hearing, he entered an order to that effect, and directed the trial to proceed under the indictment. We. are unable to say that the court was in error in his ruling in this regard. Under- the article of the statute heretofore quoted large discretion is lodged in the trial judge, and he was warranted in concluding from the evidence before him that appellant was over 17 years of age at the time of the trial. We are unable to discover any abuse of discretion on his part iif reaching such conclusion. The case of Jefferson v. State, supra, is directly against appellant’s contention that the issue should have been submitted to the trial jury.

Appellant and one Pierce Downer were jointly indicted for burglary. The facts disclose that a railroad office was broken into, the safe removed therefrom, and carried some distance from the town, the lock chiseled off, and the contents taken. Downer* was a man 26 years of age. Appellant admitted the burglary, making an unwarned confession, in which he told the sheriff the hiding place of a portion of the stolen property, which was found by the officer as a result thereof, and later made a written confession after proper warning, giving all the details of the preparation for and the com- . mission of the burglary. Counsel asked a special charge to the effect that, if “the jury believed from the evidence that the mind of appellant was influenced to such an extent by Downer as to render appellant incapable of cool reflection, and of the control of his normal mind and actions, they would acquit him.” We find no support either under the evidence or in the law for such a charge. The evidence fails to show that appellant was under any such duress as set out in article 44 of our Penal Code as would relieve him of criminal responsibility or punishment for the offense committed. No threats were made; no violence of any kind on the part of Downer towards appellant was shown. They appear to have been acting together in a joint undertaking, Downer furnishing the automobile and appellant paying for the gasoline necessary to reach the place where the burglary was committed. The jury may have considered the disparity in the ages in assessing the minimum punishment against appellant, and this was as far as they were at liberty to go under the law.

Finding no errors in the record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In liis motion for rehearing appellant insists that a continnance should have been granted him, and that we erred in upholding the action of the trial court in refusing to transfer this cause to the juvenile court. We correctly said in the opinion that the decision of the question of juvenility was for the trial judge, this being, of course, subject to revision by this court upon appeal. An examination of the record discloses that the only witness introduced I>y appellant in his behalf on this point was his father, who testified that appellant was born in November, 1905. This being true, appellant would have been under 17 years of age at the date of his trial. As rebutting this testimony of appellant’s father, it appears that school and census records, including a statement made by appellant’s mother, were introduced by the state,* all of which showed that appellant, while only 16' years of age at the time of the commission of the offense in September, 1921, became 17 in November, 1921, and was, therefore, not a juvenile at the time of the trial in 1922. In addition to the above evidence, it was shown that, when arrested and charged with this offense in September, 1921, appellant himself stated that he was then 16 years of age. If this was true, he became 17 in November 1921, and was therefore not a juvenile at the time of this trial. The evidence being conflicting upon this issue, its decision was for the trial court, and we do not think our opinion erroneous in holding that there was sufficient evidence before said trial court to justify his decision against appellant on this issue.

The only evidence attributed to the father and mother of appellant in the application for continuance based on their absence was that, if present, they would testify that he would not be 17 until November, 1922. This evidence was immaterial to any issue in the case save that relating to whether he should be tried as a juvenile or otherwise. When the latter issue was being tried appellant’s father was present. The testimony of the absent witnesses not shedding light upon any material issue in the ease as tried before the jury, no error could arise from the refusal of such continuance.

The motion for rehearing will be overruled. 
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