
    ROBERTSON v. STATE.
    (No. 6992.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1922.)
    1. Jury <©=>21 (6) — Issue of accused’s age as affecting his right to trial as juvenile need not be submitted to jury.
    The court’s refusal to submit to the jury the question of whether accused was less than 17 years old, and therefore entitled under Code Cr. Proc. art. 1195, to be tried as a juvenile delinquent, is not a violation of Const, art. 1, § 15, insuring trial by jury, since whether tried as juvenile delinquent or as a felon he had, under Code Cr. Proc. art. 1198, the right to have the merits of his case tried by jury.
    2. infants <@=368 — Mere disparity of ages between accused and accomplice does not necessitate instruction on theory of duress.
    A mere disparity of age between accused, 17 years old, and an accomplice, 26 years old, in the absence of any showing of dpress which under Penal Code, art, 44, would relieve accused from liability, is insufficient to necessitate an instruction on the theory that accused may have been under the influence of his accomplice.
    <§nn>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Matagorda County; M. S. Munson, Judge.
    Otho Robertson was convicted of burglary, and lie appeals.
    Affirmed.
    See, also, 243 S. W. 1098.
    John E. Perry, of Bay City, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for burglary; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant, charging that he was under 17 years of age, sought to be triéd as a juvenile, and availing himself of the privilege accorded by article 1195 of the Code of Crim. Procedure, also sought to have his case dismissed, claiming that he was under 17 years of age. The trial judge decided this issue against him upon a hearing. Appellant claims that the failure of the court to submit that issue of fact as to his age to the jury upon his request was violative of section 15, art. 1, of the Constitution, which declares that the “right of trial by jury shall remain inviolate.”

Article 1195, supra, declares that when a youth under 17 years of age is charged, with a felony, he may file a sworn statement setting forth his age, and proceeds:

“ * * * When such a 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 les^ than seventeen years of age, said judge shall dismiss said prosecution and proceed to try the juvenile as a delinquent, under the. provisions of this act.”

We do not think this provision of the statute is void. Wte have held to the contrary. McLaren v. State, 82 Tex. Cr. R. 449, 199 S. W. 811; Ex parte Pruitt, 82 Tex. Cr. R. 894, 200 S. W. 892; Ex parte McLoud, 82 Tex. Cr. R. 299, 200 S. W. 894; Ex parte Gordon (Tex. Cr. App.) 232 S. W. 520. Whether one is tried as a juvenile delinquent, or as a felon, he is expressly accorded the right to have the merits of the case determined by the jury. Code of Crim. Rep. art. 1198; Gordon v. State (Tex. Cr. App.) 232 S. W. 521.

As a general rule, it is held that the provision of the Constitution against the violation of the right of trial by jury relates to the right as it existed at the time the Constitution was adopted. Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 122 Am. St. Rep. 658; Id. 48 Tex. Cr. R. 632, 90 S. W. 492, 3 L. R. A. (N. S.) 622; Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Ex parte Roper, 61 Tex. Cr. R. 68, 134 S. W. 334. The right in question in the instant case was conferred by a statute enacted long subsequent to the adoption of the Constitution. Moreover, the courts have frequently held that, in the absence of an express or implied inhibition by the Constitution, the Legislature may lawfully confer upon the judge trying a case of felony the power to assess the punishment, leaving to the jury the determination of his guilt or innocence without violence to the right of trial by jury. State v. Hamey, 168 Mo. 167, 67 S. W. 620, 57 L. R. A. 846; Cyc. of Law & Proc. vol. 24, p. 146. Many instances occur in which it has been judicially held that it is competent for the Legislature to confer upon the judge trying the case the power to determine preliminary or ancillary matters. Cye. vol. 24, p. 146. Adverting to the statute in question, it may be added, however, that if it offends against the constitutional guarantee of the right. of trial by jury, it would be void and therefore confer no right upon the appellant. In other words, it is upon the part of article 1195, Code of Crim. Proc., which has been adverted to, that the appellant bases his claim of exemption from prosecution for the felony for which he was indicted.- His attack upon the statute, if sanctioned, would destroy the basis of his own contention.

Special charges were requested presenting to the jury the theory that the appellant may have been under the influence of his companion Downer and by reason thereof incapable of forming a criminal intent. The only evidence that has been perceived on this subject is the disparity in the ages of the two. The evidence shows that both :the appellant and Downer acted in the com- ■ mission of the offense. Downer was 26 years of age, and the appellant was 17 years old. We think there was no error in refusing the charge. One forced by threats or violence to do an act is not liable to punishment therefor. The statute, article 44 of the Penal Code, so declares. The evidence, however, fails to suggest that the appellant was under duress within the meaning of this statute.

There are no other questions raised which require a discussion.

The judgment is therefore affirmed.  