
    GORDON v. STATE.
    (No. 5980.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1920.
    Rehearing Denied March 23, 1921.)
    1. Infants <@=>16 — Counts charging felony without specifying age ineffective under juvenile acts.
    Counts in information and complaint charging a felony were ineffective under the Juvenile Act where they did not specify that the party against whom they were filed was under 17 years of age.
    2. Criminal law <@=>974(2), 1144(13) — Motion in arrest made after judgment too late; evidence presumed to support valid count.
    'Where information and complaint under the Juvenile Act charged seven distinct felonies in as many counts without specifying in six of them that defendant was under 17 years of age, but there was no motion to quash and no steps taken in regard thereto until after judgment convietfag defendant as a juvenile was rendered, a motion in arrest of judgment was too late, and, in aid of the presumption that the court below is correct, the judgment will be sustained on the theory that the evidence supported the count which charged that defendant was under 17 years of age and that the court acted correctly in applying the facts to such count.
    On Motion for Rehearing.
    3. Criminal law <@=>13 — Statute defining delinquent and incorrigible children not unintelligible.
    The law defining delinquent and incorrigible children is not in its terms so vague, incongruous, and unintelligible and so indefinitely framed that it is doubtful of construction and cannot be understood.
    4. Infants <@=>68 — Jury <@=>21 (6) — Delinquent Child Law does npt deprive accused of trial by jury and right to counsel.
    The Delinquent Child Daw does not violate the fundamental rights guaranteed to an accused and the right to be heard by counsel in view of Yernon’s Ann. Code Cr. Proe. 1916, arts. 1198 and 1200.
    5. Criminal law <@=>1090(11), 1144(10) — Matters presumed in aid of judgment convicting one as a juvenile; no review in absence of bill of exceptions.
    A claim on appeal from a conviction as a juvenile that (1) there was no notice given to his parents or those in legal custody of the infant, (2) and the court did not appoint a legal representative to act for the infant in the trial of the cause, (3) and the infant had no voice in defense of himself, (4) and was denied the right of the provision of law in reference to his suspension of sentence, (5) and was denied right of trial by jury to hear testimony and consider it, (6) that his application and suspension of sentence was wholly ignored, present questions of fact incident to procedure on the trial, and the appellate court is bound to determine them from the record and upon the presumptions as to the legality of judgments, and cannot consider them in the absence of bill of exception; record not affirmatively showing that court erred.
    6. Criminal law <@=>982 — Application for suspended sentence may be waived.
    An application for suspended sentence may be waived.
    7. Jufy <@=>29(2) — Trial by jury under Juvenile Delinquent Act may be waived.
    A trial by jury may be waived by infant prosecuted under Juvenile Delinquent Act.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Morris Gordon was convicted as a juvenile, and appeals.
    Affirmed.
    . Sid Crumpton, of Texarkana, for appellant.
    C. M. Cureton, Atty. Gen., and Walace Hawkins and Alvin M. Owsley, Asst. Attys. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted as a juvenile and sent to the reformatory at Gatesville.

The record is before us without a statement of facts or bills of exception. The information and complaint contain seven counts. The first count seems to be in proper form, charging appellant with being under 17 years of age. The other six counts do not show nor allege that he is under 17 years of age. Each count charges a felony. They were therefore ineffective under the Juvenile Act (Vernon’s Ann. Code Cr. Proc. 1916, arts. 1197-1207) in charging felonies in. a complaint and information without specifying that the party against whom these charges were filed was under 17 years of age. There was no motion to quash, and no steps taken in regard to this matter until after the judgment was rendered, when a motion in arrest of judgment was filed. This was overruled. We are of opinion that this comes too late. The court was without jurisdiction to try felonies on a complaint and information, and under the juvenile law the exception to the above statement is found in the fact that the boy was under 17 years of age, and therefore he could be charged and convicted as a juvenile for that reason; otherwise only the district court would have jurisdiction to try the case as in ordinary felony cases. It seems that each count in the complaint and information charges a separate and distinct offense, so far as the pleadings are concerned, not growing out of the same transaction. Felonies and misdemeanors cannot be joined in the same count, but under the decisions a motion in arrest of judgment would come too late, and in passing upon this case, in aid of the presumption that the court was correct in his judgment, it will be sustained on the theory that the evidence supported the first count in the information, which charges that appellant was under 17 years of age, and the presumption would be that the court acted correctly in applying the facts to the proper count under which a conviction could be obtained.

As the record presents the case, we are of opinion the judgment should be affirmed, and it is accordingly so ordered.

On Motion for Rehearing.

HAWKINS, J.

This case was affirmed on November 24, 1920 in an opinion by the late Presiding Judge DAVIDSON. Appellant .through his counsel filed a motion for rehearing, the first ground of which is “that the law defining delinquent and incorrigible children is in its terms so vague, incongruous, and unintelligible, and so indefinitely framed, that it is doubtful of construction and cannot be understood.” Practically the same attack has been made upon this law many times before, and has been decided against appellant’s contention. Aikins v. State, 49 Tex. Cr. R. 229, 91 S. W. 790; Watson v. State, 49 Tex. Cr. R. 371, 92 S. W. 807; Bates v. State, 50 Tex. Cr. R. 568, 99 S. W. 551; Byrd v. State, 55 Tex. Cr. R. 390, 116 S. W. 1146; Perry v. State, 61 Tex. Cr. R. 2, 133 S. W. 685; Ragsdale v. State, 61 Tex. Cr. R. 145, 134 S. W. 234; Ex parte Ramseur, 81 Tex. Cr. R. 413, 195 S. W. 864; Ex parte Medrano, 81 Tex. Cr. R. 388, 195 S. W. 865; McLaren v. State, 82 Tex. Cr. R. 449, 199 S. W. 811; McCallen v. State, 76 Tex. Cr. R. 353, 174 S. W. 611; Ex parte Pruitt, 82 Tex. Cr. R. 394, 200 S. W. 392; Ex parte McLoud, 82 Tex. Cr. R. 299, 200 S. W. 394.

In his second ground of motion for rehearing ■ appellant attacks the Delinquent Child Law because he says it violates, or is not in keeping with, the fundamental rights guaranteed to the accused of trial by jury and the right to be heard by counsel. Reference to the law itself will show this contention to be without foundation (article 1198, Vernon’S' C. C. P.): “In all trials under this act, any person interested therein may demand a jury.” If no counsel appears for the child, article 1200, Vernon’s 'C. C. P., provides: “The court may appoint counsel to appear and defend on behalf of such child.”

Ajvpellant, by his attorney, further urges that a rehearing be granted because: (a) There was no notice given to his parents or those in legal custody of said infant; (b) and the court did not appoint a legal representative to act for him in the trial of said cause; and (c) he had no voice in defense of himself; (d) he was denied the right of the provision of the law in reference to his suspension of sentence; (e) and was denied the right of trial by jury to hear testimony and consider it; (f) that his application for suspension of sentence was wholly ignored by the court. The several matters last complained of present questions of fact incident to procedure on the trial, and this court is bound to - determine them from the record before us and upon the presumptions as to the regularity of judgments. Not a single bill of exceptions to any of the matters now complained of appear in the récord, and they are not presented in any other such way that this court can consider them. The record does not affirmatively show that notice was given to the parents or those in legal custody of appellant; but, in the absence of a bill of exceptions showing it wás not given, we must presume that the judge did his duty and gave the notice. The same is true with reference to counsel for appellant. The record shows that a motion for new trial was filed by counsel the day after conviction, and, in the absence of a showing to the contrary, we will presume that counsel represented him either by selection of himself or parents, or that the court appointed counsel for him. The judgment was rendered in this case on May 24, 1920. An application for suspension of sentence was filed on January 23, 1920, four months previous. The application for suspended sentence could have been waived and likewise trial by jury; and in the absence of showing to the contrary we will presume all this was done, and that the judgment, which on its face is regular, was properly entered.

Finding nothing which would justify us in disturbing the prior affirmance of this case, the appellant’s motion for rehearing is overruled. 
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