
    Ex parte ELLIS.
    (No. 4898.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Infants <@=>16 — Dismissal of Indictment-Complaint and Information.
    Under the statute for the prosecution and conviction of delinquents, when an indictment for felony is dismissed because defendant is under 17,'he cannot be tried thereunder as a delinquent, but a complaint and information must be filed against him.
    Application for habeas corpus on behalf of Harry Ellis.
    Writ granted, and relator discharged.
    John T. Duncan, of La Grange, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The application for writ of habeas corpus herein and the agreed facts show that relator was duly indicted by a grand jury of said county for assault with intent to rape, a felony; that when the cause came on for trial he filed proper affidavit, alleging that he was under 17 years of age. The court heard the evidence thereon, and found that he was under that age. He thereupon ordered the cause dismissed from the docket of the district court, and transferred it to the juvenile docket of that court. The court then on the indictment alone, without any complaint or information, tried him as a delinquent, found him guilty, and adjudged that he be duly conveyed to the industrial school for boys at Gatesville, and confined therein not less than 2 years nor more than 5, and not after he reached the age of 21 years.

The statute for the prosecution and conviction of delinquents has already been construed by this court, holding that when an indictment for felony is dismissed that the accused cannot be tried thereunder as a delinquent, but that it is necessary that a complaint and information be filed against him, and that he cannot be legally tried and convicted without a complaint and information.

These decisions are adhered to and followed. Ex parte Ramseur, 195 S. W. 864; Ex parte Medrano, 195 S. W. 865. However, special attention is here called to Miller v. State, 200 S. W. 389, not yet officially published. It therefore necessarily follows that the writ of habeas corpus is granted by this court, and it is ordered that he be no longer restrained by reason of said proceeding and discharged from custody. This order, however, will not preclude holding him by the proper authorities on any proper complaint and information that may be filed against him.

Writ of habeas corpus granted. Relator discharged. 
      ^=>For other casm see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     