
    DAVIS v. STATE.
    (No. 4210.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Criminal Law <@=^1144(5) — Appeal — Review — Presumptions—Incomplete Record.
    Where after conviction and motion for new trial because accused was under 17 no statement of facts heard on the trial nor evidence heard on motion for new trial accompanied the record, it was presumed that the trial court heard evidence and found, either that accused was more than 18 years of age, or that he was of such Character that his case should not be sent to the juvenile or delinquent court for trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§-2738, 2742, 2901, 3020; Dec. Dig. <§=^1144(5).]
    2. Infants <@=318 — Juvenile Offendeks — Prosecution — Jurisdiction.
    Under various acts of the Legislature in regard to delinquent children, a trial judge, when the question of accused’s youth is presented, has authority to hear evidence and determine whether the interest of accused and society require he be tried by the delinquent court or as a felon.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. <@=>18.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Andrew Davis was convicted of burglary, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged by indictment with the offense of burglary. When the case was called for trial appellant entered a plea .of guilty, and his punishment was assessed at two years’ confinement in the state penitentiary. This occurred May 16, 1916, and judgment was entered on that day. On the 28th day of June thereafter a motion for new trial was filed, sworn to by counsel for appellant, alleging that appellant, was under 17 years of age, in fact was only 14 years of age on the 21st day of last January. The court entertained the motion on June 29th, and overruled it, from which order appellant prosecutes this appeal.

No statement of the facts heard on the trial of the case,- nor the evidence heard on the motion for new trial, acconqpanies the record before us. Therefore we would be authorized to conclude that the court heard evidence and either found that appellant was more than 18 years of age, or that he was of that character of person who should not have his case sent to the juvenile or delinquent court for trial, but should be treated as a felon. That lie had a right to so adjudge and hold was decided by this court in the cash of McCallen v. State, 174 S. W. 612. Judge Prendergast in that opinion reviews at length all the acts of the Legislature in regard to delinquent children, and held when that question was presented to a trial, judge he would have the authority to hear evidence, and, after doing so, to determine whether or not the interest of the person charged and society required that his case be sent to the delinquent court' for trial, or that he be tried as a felon. The opinion in the case is decisive of the question here presented, and we do not deem it necessary to again review the provisions of the statute.

After he had perfected his appeal, appellant on- October 3d presented to this court an original application for a writ of habeas corpus, alleging the same grounds as those contained in the motion for a new trial in the district court. The application was filed with the papers in the case on appeal, and as it presents no other question than that entertained and passed on by the district court on the motion for a new trial, we do not think it should be granted.

The judgment is affirmed. 
      <g^>For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes
     