
    SINGLETON v. STATE.
    (No. 10088.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.)
    Infants <§=»68 — Proceeding to ascertain age of accused to determine whether he should be proceeded against as delinquent juvenile held not erroneous because his father was not notified (Code Cr. Proe. 1925, arts 1083-1093, formerly arts. 1195-1207).
    Proceeding, under Code Cr. Proc. 1925, art. 1084,' formerly article 1195, to ascertain age of an accused in order to determine whether he should be proceeded against as a delinquent juvenile under title 16 (arts. 1083-1093) formerly title 17 (arts. 1195-1207), held not erroneous because father of accused was not notified of proceeding as required by Code Cr. Proc. 1925, art. 1087, formerly article 1200, which is applicable only where accused is proceeded against as a juvenile.
    Appeal from Shelby County Court; F. C. Powell, Judge.
    Clemmie Singleton was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Sander & Sanders, of Center, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol. Punishment is by fine of $100.

When the case was called for trial, and after the state had announced ready attorneys for appellant stated to the court that they desired to prepare and file affidavit that appellant was under 17 years of age and should therefore be proceeded against as a “delinquent” under the law relating to juveniles. See title 16; C. C. P. 1925 Revision, formerly title 17, C. C. P. Accused made this affidavit. After it was filed, the state withdrew its announcement of ready on the main case, and without objection from either party the trial judge proceeded to hear evidence to determine whether appellant was under 17 years of age. Article 1084, C. C. P. 1925 Rev., formerly article 1195. The judge found appellant to be over 17 years of age, and he was then tried on the merits of the case and conviction resulted. The evidence warranted the conclusion reached by the judge on the question of age. As we understand the record, appellant makes no contention on this point, but only urges that a reversal is demanded because the father of appellant was not notified of the proceeding. He relies on Ex parte Cain, 217 S. W. 386, 86 Tex. Cr. R. 509; Ex parte Gordon, 232 S. W. 520, 89 Tex. Cr. R. 125; Ex parte Burkhardt, 253 S. W. 259, 94 Tex. Cr. R. 583. We are of opinion these authorities have no application here. In all those cases the parties were being proceeded against as “juveniles,” in which event the statute (article 1087, O. C. P. 1925 Rev., formerly article 1200) expressly directs that notice shall be served upon the parents or others mentioned. If the judge should have found appellant to be under 17 years of age, and then proceeded to try him as a “delinquent juvenile” without notice to his father, the authorities cited would have been applicable. The statute, however, provides no method of procedure where the judge is trying to ascertain the age of an accused in order to determine whether he should be proceeded against as a “delinquent juvenile” or otherwise. Where an accused is charged with violating any penal law of the state, and affidavit is made that accused is within the juvenile age, the statute goes no further than to say:

“When such affidavit is filed, the judge shall hear evidence on the question of .the age of the accused, and if he is satisfied therefrom that the accused, if a male-is then under the age of seventeen years, or if a female is then under the age of eighteen years', the judge shall transfer the case to the juvenile docket,” etc. Article 1084, O. O. P. 1925.

If the father was desired to testify on the • question of age, accused could not rely upon the failure to “notify” required under delinquency proceedings, but should have used some diligence to have him present, and, in event of his absence, requested a postponement of the hearing.

No error appearing from the record, the judgment is affirmed.  