text:
    MILLER v. STATE.
    (No. 4628.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.
    On Motion for Rehearing, Jan. 16, 1918.)
    1. Criminal Law <&wkey;13 — Juvenile Delinquency — Statute — Certainty — Validity — “Delinquent Child.”
    The juvenile delinquent law (Vernon’s Ann. Code Cr. Proc. 1916, art. 1195 et seq.), providing that when a male under 17 charged with, a felony shall file a sworn written statement that he is under that age, the prosecution for felony shall be dismissed, and ho shall be tried under the complaint and information as a delinquent, and that if found to be a delinquent, and if sentence is not suspended, he shall be committed to the state industrial home for boys upon an indeterminate sentence not extending beyond his majority, defining a delinquent child to<include any male under that age who is incorrigible or who associates with vicious or immoral persons, and idles around saloons, railroad stations, yards, etc., protecting him in his right to a trial by jury, requiring the proceeding to be begun by sworn complaint and information, prescribing the requisites of the complaint, and providing for notice, service, and for commitment, is not so unintelligible and uncertain within Pen. Code 1911, art. 6, as to be invalid.
    [Ed. N'ote. — For other definitions, see Words and Phrases, First and Second Series, Delinquent Child.]
    2. Indictment and Information <@=3125(2) — Juvenile Delinquent — Duplicity.
    An information charging that defendant, a male child under the age of 17, broke and entered a house with intent to take personal property without the owner’s consent, and to appropriate it, that he fraudulently took a bicycle from another’s possession with intent to appropriate it to his own use, that he broke and entered another house fraudulently, intending to take personal property therefrom to his own use, which acts constituted him a delinquent child within the juvenile delinquent law, was not duplicitous as charging felonies and misdemeanors, as none of them charged him with a felony because of his age.
    3. Criminal Law &wkey;sll72(7) — Appeal — Harmless Error — Instruction as to Punishment oe Juvenile Delinquent.
    In a proceeding under such law on an information charging- defendant with being a delinquent child, an instruction that he might be committed to the state juvenile training school for an indefinite time, not exceeding 5 years, and that the jury should fix the term, though erroneous, as the juvenile delinquent law fixes the commitment to a time not beyond his majority, was in defendant’s favor, and presented no error.
    4. Criminal Law <&wkey;1184 — Appeal—Commitment oop Juvenile Delinquent — Correction on Appeal.
    In such proceeding, where the verdict found the defendant a delinquent who should be committed to the juvenile training school for a term of five years, a judgment of delinquency, and that he be committed to the state industrial school for boys for that term, would, under Code Cr. Proc. 1911, art. 938, be reformed on appeal so as to conform to the verdict, where there was no doubt that the verdict and judgment meant the state industrial school for boys.
    On Motion for Rehearing.
    5. Infants i&wkey;18 — Jurisdiction — Court of Criminal Appeals.
    The Court of Criminal Appeals has no jurisdiction on habeas corpus or appeal therefrom or otherwise to inquire into or determine the restraint and custody of a minor under an order of any probate or district court; all of such matters being exclusively civil and within the exclusive jurisdiction of the civil courts.
    6. Infants <&wkey;16 — Juvenile Delinquency Law — Nature of Proceeding.
    A prosecution and conviction under the juvenile delinquency law is a criminal and not a civil case.
    7. Criminal Law c&wkey;l017 — Habeas Corpus <&wkey;4 — Appeal — Juvenile Delinquency Proceeding — Nature of Remedy.
    An appeal lies from a conviction under the juvenile delinquent law directly to the Court of Criminal Appeals, and, for any claimed error in such trial, an appeal should be resorted to, and not a writ of habeas corpus.
    8. Infants ¡&wkey;20 — Juvenile Delinquent — JUD GHENT — Re VERSAL.
    A judgment in a proceeding under the juvenile delinquent law, finding a boy of 10 or 11 years of age to be a delinquent and committing him, conflicted with Pen. Code 1911, art. 34, providing that no one shall be convicted of any offense, other than perjury, between the years of 9 and 13, unless it is shown that he had discretion suflicient to understand the nature and legality of the act constituting the offense, so that where there was no such showing the judgment would be reversed.
    9. Infants <&wkey;16 —Juvenile Delinquent — Evidence.
    . In such proceeding, testimony of the sheriff that he had had defendant in jail several times for petit theft, and that he did not know when the cases were tried, or know that he ever stole anything, was admissible as tending to prove the state’s main case against him.
    Appeal from Guadalupe County Court; J. B. Williams, Judge.
    Le Roy Miller was convicted of being a juvenile delinquent, and be appeals.
    Reversed and remanded.
    H. E. Short and Jas. Greenwood, both of Seguin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The information herein, which was based on a proper complaint, after the formal parts, which were regular, alleged that:

“On or about the 23d day of April, A. D. 1917, in the said county of Guadalupe and state of Texas, one Le Roy Miller, a male child under the age of 17 years, did then and there unlawfully by force, fraud, and threats break and enter a house occupied by Geo. J. Kempen, with the intent then and there to fraudulently take corporeal personal property belonging to said Geo. J. Kempen therein situated, without the consent of the said Geo. J. Kempen, and with the intent to appropriate it to the use and benefit of him, the said Le Roy Miller, and with the intent to deprive the said Geo. J. Kempen of the value thereof; said act constituting said child a delinquent child. And the said Le Roy Miller on or about the 23d day of April, A. D. 1917, in the said county and state aforesaid, then and there being a male child under the age of 17 years, did then and there fraudulently take from the possession of Leo Boyle one bicycle of the value of $15, the same being the corporeal personal property of the said Leo Boyle, -without the consent of the said Leo Boyle, with the intent to deprive the said Leo'Boyle of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Le Roy Miller; said act constituting said child a delinquent child. And the said Le Roy Miller on or about the 23d day of April, A. D. 1917, in the said county and^state aforesaid, then and there being a male child under the age of 17 years, did then and there unlawfully by force, fraud, and threats break and enter a house occupied by Will Dibrell with the intent then and there to fraudulently take corporeal personal property belonging to said Will Dibrell, and situated in the said house without the consent of the said Will Dibrell, and with the intent to deprive the said Will Dibrell of the value thereof, and with the intent to appropriate the same to the use and benefit of him, the said Lo Roy Miller; said act constituting said child a delinquent child. And E. Schwoppe, county attorney for said county, presents to said court that the said Le Roy Miller, then and there being a male child under the age of 17 years, was then and there a child who violated the laws of the state of Texas, by committing petty thefts, and violated the city ordinances of the city of Seguin, Tex., by wandering about the streets after 9 o’clock p. m. during the nighttime, and the said Le Roy Miller was then and there a male child under the age of 17 years, who is incorrigible by failing and refusing to obey his parent and persons who had control over his person and acts, and failing and refusing to attend school, and by disobeying his teachers; said acts constituting said child a delinquent child.”

The court did. not err in overruling appellant’s motion to quash, this information <m the grounds: (1) Because the juvenile laws are unintelligible and not operative, and in violation of article 6, P. G.; (2) because the information is duplicitous and charges felonies and misdemeanors; (3) and because the juvenile laws do not provide any intelligent mode of procedure whereby a delinquent child can be legally tried, and any trial thereunder is a farce. It has all the time, and in many cases, been held that said laws (articles 1195 to 1207b, inclusive, 2 Vernon’s Grim. Stats.) are not void under article 6, P. G.

The proof shows appellant was only 10 or 11 years old when tried. Article 1197, O. O. P., defines who is a delinquent child, and what acts he commits make him such. The different counts in said information allege the commission of the several acts which made appellant a delinquent child. None of them charge him with a felony because of his age. Article 1195 requires the proceeding to be begun on complaint and information, which is as was done herein. The testimony of the state was ample to show he had committed the acts alleged, which authorized the jury to find him to be a delinquent.

The court in charging the jury told them the law'provides that a “delinquent child may be committed to the state juvenile training school for an indeterminate period not exceeding five years”; and if they believed from the evidence beyond a reasonable doubt he had committed the acts alleged, or any of them, “you will find him a delinquent child and order him committed to” said school “for an indeterminate period not exceeding five years.” The court was in error in telling the jury they could have him committed “not exceeding five years.” The law is for a time not beyond a time when he shall arrive at 21 years of age. But appellant made no objection before the tral was concluded, and as the charge in this respect was in his favor, this charge presents no error.

The verdict was:

“We, the jury, find the defendant, Le Roy Miller, a delinquent, and have him committed to the juvenile training school for a term of five years.”

Upon this verdict the court entered a judgment:

“That the defendant, Le Roy Miller, be and is hereby adjudged a delinquent child, and that he be placed in charge of the sheriff who shall forthwith commit him to the state industrial school for boys for a. term of five years.”

The appellant complains that the judgment entered did not conform to the verdict nor the law in that it was not for an indeterminate time. He concedes that while in some cases this court has reformed and affirmed a judgment, that it cannot do so in this instance. We think that this court can reform this judgment under the statute and decisions. Article 938, G. C. P., and decisions thereunder. The judgment herein will be reformed by this court so as to conform to the verdict in the particulars named.

The name of the school or institution at Gatesville has been changed from time to time by statute. There can be no doubt from the charge of the court, verdict, and judgment that the institution at Gatesville, providing for the training of male juveniles, was meant and intended so that while therein said institution is called the “juvenile training school” that would be no ground for a reversal of the judgment herein. Such calling it would Undoubtedly be embraced within the said juvenile statute.

Appellant has only one bill of exception, which is to the effect that the court permitted this testimony by Wm. Neubauer, to be given over his objections, viz;

“I have had the defendant, Le Roy Miller, in jail several times for petty theft. He has been convicted for stealing several times. I do not remember when these cases were tried, or any of the facts connected with them. I do not know of my own knowledge that he ever stole anything.”

Appellant’s objections were that it was not the best evidence of these convictions, that the record thereof would be the best evidence, and that it was hearsay. This testimony did not purport to be, and was not, the contents of any record of a previous prosecution of appellant. It was not hearsay, "because tbe witness was sheriff and testified he knew as a fact that appellant had been in jail several times for petty theft. He also knew as a fact that he had been convicted of stealing several times, altnough he knew nothing personally of the thefts themselves. It has all the time, and in a great number of cases, been held that a defendant or any witness may be impeached by proving by him that he had been indicted or convicted for a felony or a misdemeanor involving moral turpitude; that for that purpose it was unnecessary to produce and introduce the 'judgment of conviction. 1 Branch’s P. O. § 167, and- cases cited. This principle and these authoritites are applicable herein by analogy.

The clerk of this court will enter a judgment reforming the judgment of the court below, and adjudging the appellant a delinquent child, and that he be confined in the state institution for the training of male juveniles for an indeterminate period not to exceed 5 years from the date of his said conviction, and as so reformed the judgment will be affirmed.

On Motion for Rehearing.

There have been quite a number of cases arising under our delinquent child and juvenile statutes before this court. Various phases of the statutes have been discussed and determined. This is the first case where a direct appeal from a trial and conviction of an accused as a delinquent child has been brought to this court. The other cases have been where this court granted an original ha-beas corpus or entertained an appeal from a trial below on a habeas corpus. The reason for entertaining this direct appeal was not discussed in the original opinion. Perhaps it should have been. We take occasion to do so briefly at this time. Unfortunately, as this writer believes, the decisions of this court on these matters have not been uniform, but somewhat conflicting, it seems, rendering the law and its enforcement more complicated and uncertain than some claim the statute itself to be. At the time this case was under consideration and consultation there were several other cases involving our delinquent child and juvenile statute law also under consideration and consultation. Among them were No. 4591, Ex parte Ethel McCloud, 200 S. W. 394, from Harris, and No. 4652, Ex parte Walter Pruitt, 200 S. W. 392, from Menard, counties. While the opinion in this and other cases were handed down on different dates, they were all at the time considered together.

It has been uniformly and many times held both by this court and our civil courts that this court has no jurisdiction by habeas corpus or appeal therefrom, or otherwise, to inquire into or determine the restraint and custody of a minor who is so restrained or in custody under an order of any probate court or district court in divorce proceedings or any person adjudged insane; that all such matters are exclusively civil, and the civil courts alone have jurisdiction to determine and adjudge all such questions. Ex parte Reed, 34 Tex. Cr. R. 9, 28 S. W. 689; Ex parte Berry et al., 34 Tex. Cr. R. 36, 28 S. W. 806; Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Telschek v. Fritsch, 38 Tex. Cr. R. 43, 40 S. W. 988; Ex parte Calvin, 40 Tex. Cr. R. 84, 48 S. W. 518; State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S. W. 901; Rice v. Rice, 24 Tex. Civ. App. 506, 59 S. W. 941; Ex parte Reeves, 100 Tex. 617, 103 S. W. 478; Pittman v. Byars, 51 Tex. Civ. App. 83, 112 S. W. 102; Ex parte Fuller, 58 Tex. Civ. App. 217, 123 S. W. 204; Finney v. Walker, 144 S. W. 679; Hall v. Whipple, 145 S. W. 308; Ex parte Singleton, 72 Tex. Cr. R. 123, 161 S. W. 123.

In Ex parte McDowell, 76 Tex. Cr. R. 1, 172 S. W. 213, it was held by this court in substance and effect that a prosecution and conviction as a delinquent child under our delinquent child statutes was a criminal proceeding and not a civil, and that in the event a child thereunder was illegally restrained of his liberty the writ of habeas corpus was available to him in the criminal courts. In Ex parte Bartee, 76 Tex. Cr. R. 289, 174 S. W. 1051, Bartee had been adjudged a delinquent child, his offense being a misdemeanor, ordered restrained in the industrial school for boys at Gatesville, confined therein, and escaped therefrom. On being arrested because of his escape to be returned by the officer to said Gatesville school under said conviction, he sued out a writ of habeas corpus before the district judge, who, upon hearing, remanded him to custody, from which he appealed to this court. In that case this court held that a conviction under said statute was not for a criminal offense, and that such proceeding was in the nature of, if not entirely, a probate proceeding only. However, in that case this court entertained jurisdiction of that appeal. It could not have done so if the proceeding had been a civil case only. It was by reason of the fact that it was criminal in its nature that this court could and did entertain jurisdiction. Again, in that case it was held, in passing on the authorities cited by the Assistant Attorney General from other states, that;

“We do not think an appeal would lie to this court from a trial adjudging one a delinquent child, but that on habeas corpus an appeal would lie, or we would have authority to issue an original writ to determine whether or not one had been tried in accordance with the provisions of this law, and whether or not one was illegally restrained of his liberty.”

There was therefore a seeming, if not a real, conflict between the holdings in the McDowell and Bartee Gases.

In reviewing these and other cases and our statutes on the subject of a delinquent child in said Walter Pruitt Case, 200 S. W. 392, and said McCloud Case, 200 S. W. 394, it was in substance and effect held that a prosecution and conviction under said delinquent child statutes was a criminal proceeding; and in the McCloud Case it was expressly held that an appeal from a conviction under said statute would lie directly to this court. So that this writer, in writing the original opinion herein, without discussing the matter, followed the holding of his Associates in said cases and acted thereon.

It may therefore be regarded as settled now by this court: (1) That a prosecution and conviction under our delinquent statutes is a criminal, and not a civil, case; (2) that an appeal lies from a conviction thereunder directly to this court, and that for any claimed error in such trial an appeal should he resorted to, and not a writ of habeas corpus; (3) that after a reasonable time from the publication of this decision an original application to this court for a habeas corpus will be denied, and the accused required to resort to his remedy of appeal.

Now we come to discuss the questions raised by the- motion for rehearing herein. For the first, time in his motion and argument for rehearing he calls our attention to article 34, P. C., which is:

“No person shall in anv case be oonvicted of any offense committed before he was of the aae of nine years, except perjury, and for that only when it shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath: nor of any other offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.”

This not only escaped our attention in the consideration of the case, hut it must also have escaped the attention of the trial court and the attorneys on both sides, and it was only suggested, as stated, at this late hour. However, it goes to the very foundation of the conviction. The accused herein by the uncontradicted testimony was shown to be only 10 or 11 years of age. There is no proof in the record which shows that he had discretion sufficient to understand the illegality of the several acts alleged to constitute the offense against him. The result is that the judgment must be reversed on this ground. See the decisions under this article in 1 Vernon’s Crim. Stats.

We have also concluded that we were in error in holding that the testimony objected to, shown in the original opinion, of the sheriff, Mr. Neubauer, was admissible under the circumstances. We now believe and hold that this testimony was inadmissible. 1 Branch, Ann. P. C. p. 99. It was admitted before appellant had testified, and not solely to impeach him, hut to tend to prove tho state’s main case against him. It is not intended, however, on this point, to hold that a witness, or the accused himself, when he testifies, cannot be impeached by showing he has been convicted of theft, within a reasonable time before the prosecution. For such evidence would be admissible for impeachment. 1 Branch, Ann. P. C. § 107.

For the errors above pointed out, the rehearing is granted, and the case now ordered reversed and remanded.
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source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    Ex parte PRUITT.
    (No. 4652.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    1. Infants @=>12 — Delinquents — Statute —Vapidity.
    The juvenile delinquent law (Vernon’s Ann. Code Cr. Proc. 1916, art. 1195 et seq.), taking cognizance of the youth of offenders against the criminal laws and framed with respect to the inconsiderate acts of youth, and providing that a juvenile offender committing what would otherwise be a felony shall be punishable only by commitment to some institution for a term not beyond his majority, etc., is a proper exercise of legislative power.
    2. Criminal Law <®=>13 — Juvenile Delinquency — Statute—Certainty—-Validity.
    The juvenile delinquent law, providing that when a male under 17 charged with a felony shall file a sworn written statement that he is under that age, the prosecution for felony shall be dismissed, and he shall be tried under the complaint and information as a delinquent, and that if found to be a delinquent, and the sentence is not suspended, he shall be committed to tho state industrial home for boys upon an indeterminate sentence not extending beyond Ms majority, and defining a delinquent cMld, and protecting him in his right to trial by jury, and requiring the proceeding to be begun by sworn complaint and information, prescribing the requisites of the complaint and notice and service and commitment, is not so indefinite and uncertain within Pen. Code 1911, art. 6, as to be invalid and inoperative.
    3. Infants <@=>16-Muveinile Delinquent-Jury Trial — Punishment.
    The juvenile delinquent law, fixing the maximum and minimum punishment and giving a right to trial by jury, requires that the jury shall fix the punishment in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 770, requiring that the verdict must not only declare defendant’s guilt, but assess the punishment where none is absolutely fixed by law, and a commitment by the court to the Texas training' school for boys for not less than 2 nor more than 4 years was unauthorized and void.
    Prendergast, J., dissenting.
    Original application for' writ of habeas corpus by Walter Pruitt.
    Petitioner discharged.
    W. E. Taylor, of San Angelo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The relator was charged by indictment with the offense of burglary, which is a felony. He filed in the district court a written sworn statement that he was under 17 years of age, as required by article 1195, C. C. P., and proved by evidence that he was under 17 years old. Thereupon the court dismissed the prosecution, and the complaint and information were filed charging that the relator was a delinquent child and a male person under the age of 17 years, and stating additional facts sufficient to allege that he had committed a burglary. On his trial before a jury he was found guilty of being a delinquent child, but no punishment was fixed by the jury. The issue of suspended sentence was submitted, but not referred to in the verdict. In the judgment the court uses the following language:

“It is further ordered, adjudged and decreed by the court that he, the said Walter Pruitt, be punished by confinement in the Texas training school for boys, and that he be confined in said Texas training school for boys for a term of years not less than two nor more than four years.”

Relator, detained under this judgment, makes application to this court for an original writ of habeas corpus, claiming: (a) That the law under which the prosecution is founded is so indefinitely framed as to be unintelligible, and therefore void; (b) that the court failed to submit to the jury the question of punishment, and submitted only the question of guilt or innocence; (e) that the information is insufficient in that it charges a felony.

The law in question (title 17, p. 985 et seq.) in some of its parts is more or less vague, and it may be found that some of its provisions are not enforceable. In the main, however, this is not true, and in so far as it touches the questions involved in this application is, we think, sufficiently definite. Laws relating to the subject of juvenile delinquents, while modern in their development, are founded upon ancient principles. Many precedents in the common law are found for legislation taking cognizance of the youth of offenders against the criminal laws as well as laws -relating to civil contracts. Among these is the common-law rule prohibiting the punishment as a felon of a child under 17 years of age, and the laws touching the contracts of minors. The statutes of this state have been framed with respect to the inconsiderate acts of youths in many instances, and have carefully guarded against their punishment, as instance, articles 34 and 35 of the Penal Code, placing limitations upon circumstances under which they may be punished, and the extent of the punishment. The general idea of delinquent acts similar in principle to that under consideration has been accepted by the courts of the. various states as a proper exercise of legislative authority. Wharton on Grim. Law, § 364, p. 481; also sections 369, 370; In re Sharp, 15 Idaho, 120, 96 Pac. 563, 18 L. R. A. (N. S.) 886, and notes; 22 Cyc. 520, 521; Am. & Eng. Ann. cas. 76; Hunt v. Wayne Circuit Judges, 142 Mich. 93, 105 N. W. 531, 3 L. R. A. (N. S.) 564, 7 Ann. cas. 821; State ex rel. Miller v. Bryant, 94 Neb. 754, 144 N. W. 804; State ex rel. Spritka v. Parsons, County Judge, 153 Wis. 20, 139 N. W. 825.

Article 1195 of title 17 (Vernon’s Ann. Code Cr. Proe. 1916) is specific in stating:

(1) That when a male under the age of 17 charged with felony shall file a sworn written statement that he is under 17, and this on investigation by the court is found true, that the prosecution for felony shall be dismissed and the accused prosecuted under complaint and information as a delinquent.

(2) That if found to be a delinquent and the sentence not suspended “as provided in the laws of this state in cases of felony,” he “shall be committed to the state industrial school for boys upon an indeterminate sentence,” which shall not extend beyond the time when he will reach “the age of twenty-one years.”

(3) That his conviction and detention shall not deprive him of civil rights when he reaches his majority.

(4) Article 1197, C. C. P., defines a delinquent child as follows:

“TJie words ‘delinquent child’ shall include any male child under seventeen years of age, or any female child under eighteen years of ag'e, who violates any laws of this state, or any city ordinance; or who is incorrigible; or who knowingly associates with thieves, vicious or immoral persons; or who knowingly visits a house of ill repute; or who knowingly patronizes or visits-any place where any gambling- device is or shall be operated; or who patronizes any saloon or place where any intoxicating liquors are sold;- or who -habitually wanders about the streets in the nighttime without being on any business or occupation; or who habitually wanders about any railroad yards or tracks; or who habitually jumps on or off of any moving train, or enters any car or engine without lawful authority; or who is guilty of immoral conduct in any public place.. Any child committing any of the acts herein mentioned shall be deemed a ‘delinquent child,’ and shall be proceeded against as such in the manner hereinafter provided.”

(5) Article 1198 protects the accused in the right of trial by jury.

(6) Article 1199 requires the proceeding to be begun by sworn complaint and information “filed by the county attorney as in other cases under the laws of the state.”

(7) The requisites of the complaint are named declaring that it shall state the acts committed in a general way which constitute the accused a delinquent child.

(8) Article 1200 provides for notice and service.

(9) Article 1203 provides for commitment.

This is a sufficient statement of the provisions of the law involved in this proceeding, and, as above stated, are, we think, sufficiently specific to sustain it in its application to the facts of this case. We find nothing in article 6 of the Penal Code, nor in the decisions construing it which, in our opinion, would justify the condemnation of the provisions of the law mentioned as void for want of certainty. The law fixes the maximum and the minimum of the punishment, namely, an indeterminate period not extending beyond the time that the juvenile will reach the age of 21 years. The law giving the right to trial by jury, we think, implies and requires that the jury shall fix the punishment. O’Conner v. State, 37 Tex. Cr. R. 207, 39 S. W. 368; Johnson v. State, 72 Tex. Cr. R. 178, 161 S. W. 1098; Smith v. State, 72 Tex. Cr. R. 206, 162 S. W. 835; Williamson v. State, 72 Tex. Cr. R. 618, 163 S. W. 435; Simmons v. State, 73 Tex. Cr. R. 288, 164 S. W. 843; Link v. State, 73 Tex. Cr. R. 82, 164 S. W. 987, and Vernon’s C. C. P. art. 770, wherein it is declared that the verdict against the defendant must not only declare him guilty, but in addition thereto shall assess the punishment in all eases where the same is not absolutely fixed by law to some particular penalty. The terms of article 1195 are conclusive, we think, that the amount of the punishment within the limits named is for the jury and not the court, otherwise the reference therein to the suspended sentence law would be nugatory.

The information states that the relator was a delinquent child, a male person under the age of seventeen years, and states facts making him a delinquent, viz. that he has committed an act which, if he were above that age, would constitute him guilty of burglary, fully describing the delinquent act. The judgment fixing the term of his punishment is void. There is an entire absence of power on the part of the judge to fix the punishment. Such is the holding of this court in Ex parte Marshall, 72 Tex. Cr. R. 83, 161 S. W. 112; the holding being that a judgment so entered is void in the sense that it will not be available in a plea of former jeopardy. Marshall v. State, 73 Tex. Cr. R. 531, 166 S. W. 722, reported and annotated also in L. R. A. 1915A, p. 527. See, also, In re Cica, 18 N. M. 452, 137 Pac. 598, 51 L. R. A. (N. S.) 373, and annotations, and In re Taylor, 7 S. D. 382, 64 N. W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843, and notes. The court held the verdict and judgment void, because the act of the Legislature authorizing it was void. That act was held bad because in conflict with article 770, supra, which requires that the punishment shall be fixed by the jury. Such a judgment being void, when the Legislature has made an attempt to authorize it, must for quite as strong a reason be void when it is rendered without the support of any act of the Legislature, and in direct opposition to the statute declaring that the jury and not the court shall name the punishment.

Following these authorities the relator is ordered discharged in so far as he may be held in custody by reason of the judgment mentioned.

PRENDERGAST, J., dissents.
      igz=>li'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte McLOUD.
    (No. 4591.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Infants <@=>16 — Juvenile Delinquence— Punishment — Statutes.
    Const. art. 5, § 17, provides that misdemeanors may be prosecuted by indictment or information. The juvenile delinquent law (Vernon’s Ann. Code Cr. Proc. 1916, art. 1195, et seq.) defines the term “juvenile child,” and proscribes when she may be tried by a jury, that proceedings against her shall be begun by complaint and information, and for her arrest, and for probation, placing in a home and commitment to any institution caring for children, and that no child shall be committed to. a time beyond the age of 21 years. Pen. Code 1911, art. 6 provides that if a provision of the penal law is indefinite it shall be inoperative, and Vernon’s Ann. Code Cr. Proc. 1916, art. 770, that the verdict shall assess the penalty where it is not fixed by law. Held, that the proceeding is a criminal proceeding, that article 1197 is effective only as defining a delinquent child, and not operative in so far as occupying the same field with statutes against felonies or misdemeanors, and that, there being no provision under which the jury could fix the time of confinement, a judgment committing a female delinquent child to the Sister of an order for an indefinite term not extending beyond 21 was void.
    2. Infants <@=>12 — Juvenile Delinquence— Punishment — Statute.
    Juvenile delinquent law, construed witih Const, art. 5, § 5, defining tho jurisdiction of the Court of Criminal Appeals, and Vernon’s Ann. Code Cr. Proc. 1916, art. 894, giving the right to appeal, is not void as denying the right of appeal.
    Prendergast, J., dissenting.
    Original application for writ of habeas corpus by Ethel McLoud.
    Judgment committing her to custody declared void, and petitioner ordered discharged.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an original application for a writ of habeas corpus. The relator was prosecuted under a complaint and information charging that she was a delinquent child, sufficiently complying with article 1199, C. C. P., in setting out the reasons therefor. She was tried in the county court of Harris county without demanding a jury, the judgment containing the following:

“That she is declared a delinquent child, and it is hereby ordered and decreed by the court that the said child be committed to the care and custody of the Mother Superior of the Sisters of the Good Shepherd, Dallas, Texas, for an indeterminate period of timo not extending beyond said child attaining the age of twenty-one years.”

The authority to hold her is assailed upon the ground that she was in fact over 18 years of age, and because the law under which she is held is unconstitutional and void, and by denying her the right of appeal deprives relator of liberty without due process of law. The law with reference to delinquent children (title 17, Vernon’s C. O. P. p. 985 et seq.) is discussed at some length in the case of Ex parte Pruitt, 200 S. W. 392, decided November 7, 1917, by this court. In the Pruitt Case the relator was a male under 17 years of age. In this case the relator is a female charged to have been under IS years of age.

The term “delinquent child” is defined in article 1197 of the Code of Criminal Procedure as follows:

“The words ‘delinquent child’ shall include any male child under seventeen years of age, or any female child under eighteen years of age, who violates any laws of this state, or any city ordinance; or who is incorrigible; or who knowingly associates with thieves, vicious or immoral persons; or who knowingly visits a house of ill repute; or who knowingly patronizes or visits any place where any gambling device is or shall be operated; or who patronizes any saloon or place where any intoxicating •liquors are sold; or who habitually wanders about the streets in the nighttime without being on any business or occupation; or who habitually wanders about any railroad yards or' tracks; or who habitually jumps on or off of any moving train, or enters any car or engine without lawful authority; of who is guilty of immoral conduct in any public place. Any child committing any of the acts herein mentioned shall be deemed a ‘delinquent child,’ and shall be proceeded against as such in the manner hereinafter provided.”

Article 34 of the Penal Code is as follows:

“No person shall in any case be convicted of any offense committed before he was of the age of nine years, except perjury, and for that only, when it shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath; nor of any other offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufiicient to understand the nature and illegality of the act constituting the offense.”

In article 1195, C. C. P., a provision is made whereby a boy under 17 years of age. charged with a felony, may be exempted therefrom and prosecuted as a juvenile delinquent. No similar provision is found in the statute with reference to delinquent children who are females. It was said by this court in an opinion written by Judge Prendergast,’ in the case of Townser v. State, 182 S. W. 1105, that the law did not exempt, or provide any procedure for exemption, a female under 18 years of age and above 13 years of age from prosecution for a felony. The effect of this decision is to hold that the juvenile act (title 17, supra) does not repeal article 34 of the Penal Code, supra. It follows that article 1197, quoted above, and article 34, are in conflict; at least to the extent that the matters mentioned in article 1197 have been denounced as felonies or misdemeanors. In other words, a girl under 13 years of age and over 9 years of age is subject to prosecution for any offense made criminal by the Penal Code under the restrictions set out in article 34, supra; and one over 13 and under 17 years of age is subject to prosecution through the ordinary processes of the administration of criminal law for any offense named in the Penal Code which could be committed by a person of that description. If both provisions of the statute stand, a female under 18 years of age may be prosecuted for a felony or a misdemeanor, or. at the option of the prosecuting authorities prosecuted as a delinquent child. It is said in 12 Cyc. 954:

“The punishment for the same offense must be uniform for all persons in the same class.”

The option mentioned is a doubtful authority for the reason that it would make the character or grade of offense, for which individuals of the same class might be prosecuted, depend not upon a uniform, rule declared by the Legislature, but upon the arbitrary discretion of those intrusted with the execution of the law.

Article 6 of the Penal Code is as follows:

“Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed, or from some other written law of the state, such penal law shall be regarded as wholly inoperative.”

This article was declared by this court, in the.ease of Marshall v. State, 72 Tex. Cr. R. S4, 161 S. W. 112, to operate in instances where the statute under consideration could not be harmonized with other unrepealed provisions of the Penal Code. It would be absurd to assume that it was within the legislative intent to repeal the articles of the Penal Code under which a female under 18 years of age might be prosecuted for crime. They were held not to repeal in Townser v. State, 182 S. W. 1105, and the terms of the statute defining “delinquent child” (article 1197, C. C. P.) expressly recognized that they are not repealed when it declares that the words “delinquent child” shall include any male child under 17 years of age, or any female child under IS years of age, who violates any laws of this state or any city ordinance. That the legislative intent in the passage of the statute (title 17, supra) was to leave the laws against felonies intact is indicated in the express terms of article 1195, supra, wherein it provides the procedure for trying as a juvenile delinquent a boy under 17 years of age who was indicted for a felony. The title in question, after defining a delinquent child as above, in article 1198 fixes the jurisdiction for her trial in certain courts, and prescribes in terms that she may on demand be tried by a jury; and in article 1199 it is provided that proceedings against her shall be begun by sworn complaint and information filed by the county attorney as in other cases under the laws of this state. Complaint and information are made by the statute of this state the procedure for beginning criminal actions, and the Constitution provides (article 5, § 17) that misdemeanors may be prosecuted by information or indictment. This court, in Ex parte McDowell, 76 Tex. Cr. R. 1, 172 S. W. 213, in a unanimous opinion written by Judge-Davidson, held that proceedings under this act were criminal in their nature. In Ex parte Bartee, 76 Tex. Cr. R. 285, 174 S. W. 1051, the majority held the proceedings were of a civil nature. Article 1195, one of the subdivisions of the title, provides for the right of a hoy to the benefit of the suspended sentence act. Article 1200 provides for the arrest of the accused. Articles 1197 and 1195 both indicate that the law is directed against offenders against the criminal laws of the state; that the beginning of the prosecution is by complaint and information, and essentially a criminal procedure, indicating that the conclusion reached by the court in the case of Ex parte McDowell, supra, to the effect that the statute was in the nature of a criminal statute, was correct.

The statute in question contemplates that delinquent children may be taken from the custody of their parents or guardians, ox-others standing in that relation, and deprived of their liberty, and confined in some place of confinement. In the part of the statute which refers to male delinquents the terms of confinement are made specific in the following language:

“If said juvenile be found to be delinquent, and sentence be not suspended, as provided in the laws of this state in cases of felony on first offense the defendant shall be committed to the state industrial school for boys upon an indeterminate sentence: Provided, that such defendant shall not be detained in said school after he has reached the age of twenty-one years.”

The part of the statute relating to delinquent girls has no similar or corresponding provision. The only part of the statute on the subject is article 1203, which we quote as follows:

“In any case of ‘delinquent child’ coming under the provisions of this law, the court may continue the hearing from time to time and may commit the child to the care of the probation officer or to the care or custody of any other proper person, and may allow said child to remain in its own home, subject to visitation of the probation officer or other person designated by the court, or under any other conditions that may seem proper and bo imposed by the court; or the court may cause the child to be placed in the home of a suitable family, under such conditions as may be imposed by the court, or it may authorize the child to be boarded out in some suitable family, in case provision is made, by voluntary contribution or otherwise, for the payment of the board of such child until suitable provision may be made in a home without such payment; or the court may commit it to any institution in the county that may care for children that is willing to receive it, or which may be provided for by the state or county, suitable for the care of such children, willing to receive, it, or of any state institution which may now or hereafter be established for boys or girls, willing to receive such child, or to, any other institution in the state of Texas for the care of such children willing to receive it.. In no case shall a child proceeded against under the provisions of this law be committed beyond the age of twenty-one. The order of the court committing such child to the care and custody of any person hereinbefore set out shall proscribe the length of time and the conditions of such commitment; and such order shall be at all times subject to change by further orders of the court with reference to said child; and the court shall have power to change the custody of such child or to entirely discharge it from custody whenever, in the judgment of the court, it is to the best interest of the child to do so. * * * ”

Unless the provision above quoted prescribes the measure of the jury’s authority in fixing the punishment or detention of the delinquent, there is none designated by the statute. This part of the act appears to delegate to the judge certain authority. Article 770 of our Code of Criminal Procedure contains the following:

“The verdict in every criminal action must bo general; * * * where the plea is not guilty, they must find that the defendant is either .‘guilty’ or ‘not guilty’; and, in addition thereto, they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.”

This last-quoted provision was held, in Marshall’s Case, 72 Tex. Cr. R. 83, 161 S. W. 112, to preclude the idea that the judge might fix the terms of imprisonment, and there in a statute undertaking to delegate to him that authority was held void. The proposition was reiterated in the case of Marshall v. State, 73 Tex. Cr. R. 531, 166 S. W. 722, D. R. A. 1915A, 526. Both decisions proceeded upon the reasoning that article 770, supra, requiring the jury to fix the penalty, being unrepealed, the law delegating that authority to the judge was void by virtue of article 6 of the Penal Code, which is quoted above, and which condemns as void a statute of such doubtful construction that it cannot be understood either from the language in which it is expressed or from some other written law of the state. While the object of this statute is not punishment alone, but has in view the protection, training, and reformation of a delinquent child, its purpose is to assert a right which the state possesses. Wharton, Crim. Law, §§ 364-370; In re Sharp, 15 Idaho, 120, 96 Pac. 563, 18 L. R. A. (N. S.) 886; 22 Cyc. 520, 521; Miller v. State, 65 Tex. Cr. R. 302, 144 S. W. 239. It in asserting the right ousts others who, under statutory and common law, have the right to the custody and service of their children, and in addition thereto deprives the delinquent of her liberty by proceedings criminal in their nature. It is therefore essential that the procedure be defined and explicit.

We believe that in the absence of some provision such as that contained in article 1195, supra, with reference to hoys, exempting them from prosecution under the ordinary criminal laws of the state, that article 1197 is inoperative in so far as it occupies the same field as the statutes against felonies and misdemeanors, and that it is effective only as to that part of the article which is not in conflict with the other criminal laws of the state (Cole v. State of Texas ex rel. Cobolini, 106 Tex. 472, 170 S. W. 1036); that is to say, that part of it is effective only which defines a delinquent child as a female under 18 years of age who is incorrigible, or who knowingly associates with thieves, vicious or immoral persons, or who knowingly visits a house of ill repute, or who knowingly patronizes or visits any place where any gambling device is or shall be operated, or who patronizes any saloon or place where any intoxicating liquors are sold, or who habitually wanders about the streets in the nighttime without being on any business or occupation, or who habitually wanders about any railroad yards or tracks, or who is guilty of immoral conduct in any public place; and we believe that the statute is inoperative in failing to fix any measure by which the jury is authorized to determine the terms of duration or place of confinement.

The suggestion that the law is void because it denies the right of appeal, we think, is not tenable. Article 5, § 5, of the Constitution says:

“The Court of Criminal Appeals shall have appellate jurisdiction coinexteusive with the limits of the state in all criminal cases of whatever grade with such exceptions and under such regulations as may be prescribed by law.”

Article 894 of C. C. P. is as follows:

“A defendant in any criminal action, upon conviction, has the right of appeal under the rules hereinafter prescribed.”

Title 17, C. O. P., is a law providing for procedure against transgressors against the laws of the state. The Legislature has not made an exception of persons coming within that act, and in the absence of such exception they would, in our judgment, come within the provisions of article 894, supra, extending to persons convicted the right of appeal.

Because of the absence of a provision in the law under which a jury could fix the terms and duration of confinement of the delinquent, we think the judgment is void, and relator entitled to discharge, which is ordered.

PRENDERGAST, J., dissents.
      «gséFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    WRENN v. STATE.
    (No. 4813.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Witnesses <@=>337 (5) — Impeachment — Other Offenses — Misdemeanors.
    In prosecution for violating local option law, it was improper to permit defendant to be asked about pending or past cases involving misdemeanors, unless they involved legal or moral turpitude.
    2. Witnesses <@=>337(6) — Impeachment — Other Offenses — Misdemeanors — “Pandering.”
    In prosecution for violating local option laws, it was improper to ask accused whether he had been charged with pandering, where the result of the examination as to-such matter showed that he had been arrested for being found in a room with a woman, which does' not constitute pandering.
    3. Witnesses <@=>379(4) — Impeachment.
    A written statement by the prosecuting witness in conflict with his testimony on the trial should have been admitted.
    Appeal from Hunt County Court; A. J. Gates, Judge.
    Ollie Wrenn was convicted of violating the local option law, and he appeals. Reversed and remanded.
    E. B. Hendricks, Asst, Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $25, and-20 days’ imprisonment in the county jail.

There was a sharp issue as to whether defendant did or did not sell intoxicants. The defendant took the stand and testified in his own behalf, and was asked many questions by the state as to pending or past,cases against him for violation of the criminal laws; one or more felonies, the remainder being misdemeanors. Several of the cases about which he was asked and required to testify were gaming cases. Upon another trial none of these misdemeanor matters will be permitted to be introduced against him by way of impeachment, unless they involve legal and moral turpitude. Gaming has been held not to be within the above category. He was also asked if he had not been charged with pandering. 1-Ie answered that he did not know. The result of the examination in regard to this matter was that he had been arrested for being found in a room with a woman. This is not pandering. The question was decided in the case of Hewitt v. State, 71 Tex. Cr. R. 243, 158 S. W. 1120.

There is another bill of exceptions showing that the witness upon whom the state relied for a conviction had previously signed a written statement in conflict with his testimony delivered upon the trial. This was offered in evidence, but was rejected. While the bill is somewhat informal, upon another trial the written statement of the prosecuting witness, in conflict with his testimony on the trial, should be admitted.

The judgment is reversed, and the cause remanded.


author: PRBNDERGAST, J.

text:
    GATES v. STATE.
    (No. 4824.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Criminal Law <@=>958(4) — New Trial-Motion — Requisites and Sufficiency.
    Failure to attach to motion for now trial, on ground of newly discovered evidence, the affidavit of the person whose testimony is alleged to have been newly discovered, renders the motion insufficient.
    2. Criminal Law <@=>1092(6), 1099(5) — Appeal-Preservation of Exceptions.
    Bill of exceptions and statement of facts filed in the lower court, after the adjournment of the term, cannot be considered on- appeal.

      Appeal from District Court, Trinity County; S. W. Dean, Judge.

    P. W. Gates was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRBNDERGAST, J.

Appellant was convicted of an assault with intent to kill and assessed the lowest punishment.

The evidence was undoubtedly sufficient to sustain the verdict. Every issue raised was submitted by the court in an apt charge, to which there was no objection.

In his motion for a new trial he sought a new trial on the ground of claimed newly discovered evidence. He did not attach thereto the affidavit of the person wnose testimony he -claimed was newly discovered, and his motion on this ground is wholly insufficient under the well-established law pertaining thereto. Plowever, the court heard the testimony on this ground, and after hearing it overruled the motion. This evidence was attempted to be preserved in both a bill of exception and a statement of facts, but both filed in the lower court after the adjournment of the term; hence this question cannot be reviewed by this court, as has many times been held. Reyes v. State, 196 S. W. 533, and cases there collated.

There is nothing else to discuss. The judgment is affirmed.
      <S=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MILLER v. STATE.
    (No. 4829.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Criminal Law <^1056(1) — Appeal—PRESERVATION Of EXCEPTIONS.
    Where no exceptions were reserved to the charge before it was read to the jury, the allegation in the motion for new trial that the charge was erroneous cannot be considered.
    2. Criminal Law @=958(3) — New Trial — Newly Discovered Evidence — Diligence.
    Where accused’s brother and sister were very familiar with him, and the brother testified on the trial, accused’s motion for new trial on the ground of newly discovered evidence by his sister, showing that he was' of weak mind, disclosed no diligence, and was properly denied, since it was a want of diligence to fail to inquire into such matter on the trial.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Dick Miller was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of manslaughter, his punishment being assessed of five years’ confinement in the penitentiary.

There were no exceptions reserved to the charge before same was read to the jury. In the motion for new trial it is alleged that the court’s charge, in reference to intoxication as a defense, was erroneous, in that it only gave part of the statute. As presented it cannot be considered, but we are of opinion, even if it was, there is no error in the charge as applicable to the facts of the case.

The motion for new trial alleges newly discovered testimony. The motion is not sworn to by the defendant or his attorneys, and there is nothing in the motion to show that appellant was not aware of the facts set up as newly discovered evidence. The sister of defendant files an affidavit to the effect that her brother, the defendant, was of a weak mind, and especially when under the influence of intoxicants he would not know what he was doing. This evidently was known to not only defendant and his counsel, but the family connection, before the trial. The brother of appellant took the witness stand and testified in regard to the conduct and actions of his brother on the night of the homicide, and his- testimony shows great familiarity with defendant and his conduct and movements even on the night of the homicide. The defendant took the witness stand and testified intelligently, but denied that on the particular night of the homicide, after a certain time, he recollected anything; that his mind was rather a blank from a certain time to a certain time, the interregnum covering the time that he had the difficulty with deceased. His brother testified with reference to the acts and conduct of the defendant on the night just prior to the homicide. There is also evidence to the effect that defendant was drinking, but all those facts were known to the defendant and his brother and to counsel, because counsel who defended placed these witnesses on the stand, as well as defendant himself. If defendant’s mind was affected as stated by the sister, this was evidently known to the interested parties, and was known to counsel, because that was one of the phases of the defensive theory. Slight diligence would have manifested the fact that if his mind was of that character, or under certain circumstances would be placed in the condition asserted by the affidavit of the sister, the slightest diligence would have discovered that, and it was a want of diligence to fail to inquire into these matters. There is no merit in the motion for new trial on this phase of it.

The judgment will be affirmed.


author: PRENDERGAST, J.

text:
    FRANKLIN v. STATE.
    (No. 4799.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    Homicide @=234(1) — Guilt—Sufficiency of Evidence.
    In a prosecution for wife murder, evidence held to show guilt.

      Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    James Franklin was convicted of murder, and lie appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of the murder of Ms wife, Willie Franklin, anil assessed the death penalty.

There is but one question to be determined, and that is whether the evidence was sufficient to sustain the verdict. The statement of facts is somewhat voluminous, but it has been read and studied carefully more than once. Of course, all of the testimony cannot be given in this opinion. Only some of the material facts and conclusions to be drawn from the evidence will be given. Appellant himself testified and denied many of the incriminating facts testified to by other witnesses against him. The issues raised were all submitted to the jury by the charge of the court in an apt and correct charge. No attack is made on the charge in any particular. The evidence of appellant’s guilt was wholly circumstantial. The court so told the jury, and gave them a correct charge on circumstantial evidence.

Appellant and his wife lived at Silsbee in Hardin county for some time before October, 1916. He was an employé of the Santa Fé Railway Company, and worked on its running trains. About October 1st, when he was away from home, his wife quit him and left iSilsbee to parts unknown by him. He thought and believed she had quit him and run off with another man. She claimed that she quit him because of his ill treatment of her. Soon after she quit him he began inquiring around among their acquaintances at Silsbee for her and trying to ascertain where she had gone. Among others, he inquired of T. Bonner for her on October 5, 1916. Bonner told him he did not know where she was, and asked him why he wanted to know. Bonner swore:

“He said, ‘That G-d d-n bitch is gone, and I asked everybody around Silsbee where she is at and nobody knows.’ He says, ‘When 1 find her, everybody is going to know it.’ He said if he ever finds her he was going to kill her.”

Norma Ross swore:

That after his wife left him she heard appellant make a statement about her. “He said he was going to get his revenge if it took him fifteen years from that date.”

Matt Wilson swore: That appellant had a conversation with him about his wife leaving him. The witness advised him to let her go and stay 'on his job, but appellant said, “I want my revenge.” That two or three days after that the witness met him again, and he asked about a f&rtune teller at Beaumont, and the witness asked him if he had not dropped that thing yet, and appellant replied:

“No, I ain’t dropped it. He says, ‘No, I ain’t going to let it go, by God. I am going to get my revenge.’ ”

Sam Schackelford swore that he saw appellant at the depot, and appellant told him his wife had run off, and he was going off to hunt her. The witness advised him to let her go; that if she did not want to live with him he certainly ought not to want to live with her. He swore:

“He says, ‘God d-n her, I will kill her if I ever find her.’ Just that very way. I said, ‘You are fixing to get in the penitentiary; that’s what you are fixing to do.’ He said, ‘Well, I don’t give a damn what they do with me, just so I find her.’ That was just a few days before he went to Orange after her.”

The testimony by himself and others shows that he finally located her at Orange, and went there after her about October 18th. He found her there and induced her to leave there with him for iSilsbee. He swore that he slept with her that night and the next night at Beaumont. He went from Orange on the train with her to Beaumont. On the morning of October 21st he left Beaumont with her on a Santa Fé train going towards Silsbee. He himself swore that they went from Beaumont on the train together until they reached the little station Fletcher, five miles from Sils-bee. 1-Ie swore that just before reaching Fletcher he went into the toilet to put on a collar and tie, and that when he came out of the toilet, after the train reached Fletcher, his wife got off the train with a strange negro man, and he could never find her, and never saw her thereafter; that he got off of the train at Fletcher, and after hunting and inquiring for her from all quarters, and waiting there for some length of time he then went to Silsbee alone afoot. This tale by him of his wife’s escape from him was so unreasonable no one could believe it under the circumstances, but, as will be stated later, he made plain contradictory statements about the matter, which would show that this tale by him was false.

Mr. Harritt, the engineer on said train from Beaumont, on which appellant and his wife traveled to Fletcher, swore that he knew appellant. (Appellant also swore that Mr. Harritt knew him.) He swore:

“I didn’t see him step off the train, but I saw him in company with a colored woman coming from the rear of the train on this side.” That when he pulled the train up and stopped at Fletcher for persons to get on and off and while waiting there is when he saw him on this occasion. He did not know the woman who was with appellant; he did not know appellant’s wife.

He further swore:

“The last time I saw her was when I passed between the station at Fletcher and the tram crossing. They hadn’t quite got to the tram crossing, I don’t think, when I passed them there. They were still going in the direction of Silsbee, and that is the last I saw of them.”

Mr. J. H. Adams and Ed. Crystal both testified that they were working on the public road which ran from Fletcher to Silsbee and parallel with the railroad which was not far from Eletcher. Both swore that on said date they saw appellant coming from towards Eletcher going towards Silsbee with a negro woman with him. Both of them knew appellant, but neither knew his wife.

Warren Samuels, the section foreman of the railroad, working on it about halfway between Eletcher and Silsbee on said date, and James McKinney, one of his section hands, both swore that at the noon hour that day appellant came to them alone carrying a grip and a bundle of clothes; that he tried to get them to take him to Silsbee, but they refused. At the time they both swore that his pants was all full of beggar-lice, “little old things that stick on you when you go through the woods and the fields,” and that he came from the direction of where the body of his wife was later found. Mr. Samuels further swore that about November 1st he next saw appellant at Silsbee, and that appellant called him off and had a private talk with him, and appellant told him not to tell any one about him passing him down there that day. The witness said he asked him why, and he replied:

“They had had hell on the train with the conductor, the reason he was walking, and he didn’t want to lose his job.”

He also told him to post his men and tell them not to say anything about seeing him when he passed there; and that while he knew Willie Franklin, appellant’s wife, that he never saw her thereafter.

Shug Moses, a woodchopper, swore that on said date while he was chopping wood between Silsbee and Fletcher, that appellant came to where he was cutting wood; that he was carrying a grip and a bundle; that he also noticed that appellant had these old beggar-lice all over his clothes; that he was carrying a pair of woman’s shoes across his shoulder and under his coat, which he was also carrying on his shoulder; the shoes were tied together with a string across his shoulder; that the coat hid the shoes. He said he would not have discovered the shoes on his shoulder, as they were covered up, but for the fact that he took them all off and put them down on the ground. It was then that he saw the shoes. It was further shown by this witness and others also that about November 1st, when the body of appellant’s wife was found in the woods some 200 yards from the railroad track in a secluded place some mile or two from Eletcher, that appellant’s trunk was searched, and this pair of shoes was found in it still tied together as he had carried them as told by the woodchopper. Appellant himself admitted that he put these shoes in his trunk, and they were his wife’s shoes. Said Bonner testified that he saw appellant again on October 25th; that he talked to appellant about his wife, and he swore:

“He told me he brought his wife back from Orange as far as Fletcher. He said, ‘The G-d d-n bitch jumped off the train and out run me, and I couldn’t catch her, and got away from me.’ ”

Leonard Anderson and appellant both swore that Anderson was at Orange when appellant went there and got his wife. Anderson swore he returned to Silsbee about a week later, and that he saw appellant at Silsbee, and asked him where his wife was. He swore: “He [appellant] said she was gone home, to Arkansas, he said.” Said witness, Matt Wilson, swore that he saw appellant soon after he had returned from Orange, and asked him if he found his wife there. Appellant told him he had. He swore:

“I said, ‘You bring her back?’ He says, T brought her back as far as Fletcher. She came as far as Eletcher, and jumped off the train.’ He said, ‘When I come out of the toilet,’' he said, ‘the train was running so fast I couldn’t get off of it.’ He said, T just let her go.’ I said, ‘The best thing you could do to let her gó.’ He said he just decided to let her go; he wasn’t going to have any more to do with her at all.”

Said Schackelford swore that he saw appellant a few days after he came back from Orange, and he asked him if he found his wife, and he said he had; that he had found her at Orange. He swore:

“I said, ‘Did you bring her back with you?’ 1-Ie said, ‘No, the damn bitch jumped off in Beaumont and give me the dodge, and I couldn’t find her any more.’ He made no further statements to me at any time about the case.”

It was shown that appellant’s wife was never again seen alive after appellant came out of the woods with the beggar-lice on his clothes and saw and talked with the section boss and his section hand, and the woodchop-per and others. About a week later persons who had known his wife and of the circumstances about him bringing her back as far as Fletcher and getting off there with her began to hunt the woods between Eletcher and Silsbee for her body. About November 1st said Bonner and Matt Wilson both testified that they together went in said woods and hunted for her body; that they found it in a secluded place about 200 yards from the railroad track between Fletcher and Sils-bee, the direction from which the section hands saw him coming on October 21st. The question of the identity of this body with that of the deceased was controverted. Bonner swore positively to her identity. Others identified her from her clothing and hat. As soon as the body was found the justice of the peace was notified. He went to it, examined it, and he and Bonner particularly swore that her throat had been cut. They more especially examined her body closer than any of the other witnesses. Her body had begun tp decompose; maggots were working in different places in her body, and the stench from it was very great and sickening to many of them, hence they did not get so close to the body. When the body was found, the witnesses sw£ar there were no shoes on the feet; that there was an old pair of lowheeled slippers sitting on the ground by ber body. Hattie Brown swore that before deceased went to Orange on said occasion sbe let deceased bave ber hat, and the deceased wore it when sbe left'. This bat was found by tlie side of ber body and thoroughly identified as the bat o'f Hattie Brown tvhicli deceased had worn off and back from Orange. The body was buried right beside where it was found. It was not taken away. Said section foreman Samuels swore that when appellant came to where be and bis section hand were, as above related, with the beggar-lice on him, be came from the direction of where said body was later found.

It is unnecessary to recite the testimony further. The whole of it was ample to show appellant’s guilt, and that he and he alone had murdered his wife.

The judgment will therefore be affirmed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CARAWAY v. STATE.
    (No. 4853.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    Criminal Law &wkey;1182 — Appeal—Record.
    Where proceedings seem from the transcript to have been regular, and there is no bill of exceptions or statement of facts, the judgment of conviction will be affirmed.
    Appeal from District Court, Shelby County; Daniel Walker, Judge.
    Charles Caraway was convicted'of violating the local option law, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This record is before us on appeal from a conviction for violating the local option law. The proceedings seem to have been regular, so far as the transcript discloses.

There being no bill of exceptions or statement of facts to bring in review the rulings of the trial court, the judgment will, be affirmed.


text:
    CASTORENO v. STATE.
    (No. 4831.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Criminal Law <&wkey;784(l) — Instruction — Charge on Circumstantial Evidence.
    In a prosecution for homicide resulting in conviction of murder, held, the court was justified in not charging the law of circumstantial evidence.
    2. Homicide &wkey;>253(3) — Murder — Malice and Deliberation — Sufficiency of Evidence.
    Evidence as to malice and deliberation held to justify conviction of murder.
    Appeal from District Court, Bexar County ; S. G. Tayloe, Judge.
    Ysabel Castoreño was convicted of murder, and he appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder; his punishment being assessed at 15 years’ confinement in the penitentiary.

No bill of exceptions was reserved to the introduction of testimony. There is an exception to the failure-of the court to charge the law of circumstantial evidence. There are some other exceptions the force of which seem to be that there was no malice shown on the part of the defendant towards the deceased. These are rather general and based upon the fact that the testimony did not show there was any malice. We are of opinion that the court was justified in charging the jury as it did, and the facts were in such “juxtaposition” with the main fact that it was not necessary to charge upon the theory of circumstantial evidence. The state’s evidence, in this connection, would show that on the 23d of December, 1916, in a saloon owned by Slocum, were several men, among them the defendant. The witness Koch sat on a barrel in the saloon. There came a discussion between Slocum and a Mexican as to who should pay for beer. Three of the Mexicans went out of the saloon, and one of these who went out was defendant. Two others were Caterino Castoreño, appellant’s brother, and Dionicio Soto. There remained in the saloon two Mexicans, Refugio Gonzales and a Mexican by the name of Magarito Luna. The state’s witness Hardin was about to leave the saloon when he turned and saw Slocum, the deceased, standing behind the bar and Luna in front of it. Luna was pulling at Slocum’s sore hand, and Slocum slapped him in the face, and in doing SO' knocked off his hat. Slocum picked up Luna’s hat, and put it on Luna’s head, and went behind the counter. Luna reached over the counter and grabbed Slocum’s hand, and Slocum told him not to do so; that it was quite sore from a cut or dog bite. Something more was said between the parties, and Slocum said to Luna:

“ ‘Yon are one of these malo hombres’ (bad men). ‘Yes, I am,’ replied Luna; and then I heard Mr. Slocum tell this Magarito Luna to get out of the saloon; that he did not want 1ns trade, and did not want him in there. Mr. Slocum then came from back of the counter, and this man Magarito Luna stood near the saloon door and cursed Mr. Slocum. Mr. Slocum raised his arm to strike Magarito Luna; at this time Refugio Gonzales came up to Mr. Slocum as Mr. Slocum struck at Magarito Luna, and as he did so Refugio Gonzales struck Mr. Slocum with his fist somewhere back of the head. Magarito Luna and Mr. Slocum stumbled out of the saloon door, and Refugio Gonzales followed Mr. Slocum.”

Witness ran out of the saloon and followed Mr. Slocum about 30 or 40 feet away from the saloon. Witness saw Luna, on top of Slocum’s back, with his arm underneath Slo•cum’s chin. The defendant and his brother were holding Slocum’s right arm, and Soto was holding his left arm. Witness pulled the Mexicans off, and then Slocum started to his grocery store, where his wife was. Slocum entered the store and said to his wife: “Mama, I am cut, and cut bad;” then sank to the floor, and in three minutes was dead. On cross-examination he says he saw this hunch of Mexicans around Slocum. The defendant was holding Slocum’s right arm and his brother Caterino also, and Dinicio Soto had hold of Slocum’s left arm. Witness pulled the Mexicans away, defendant being one of them, and the little Mexican Tuna was on Slocum’s back, with his arm under Slocum’s chin. It was also stated in this connection that immediately upon the separation of the parties, as above indicated, when Slocum started in tb'e saloon one Mexican said, “Vámonos pronto,” which translated means “Let’s go quick,” and also said, “Subite al vagón,” that is, “Get in the wagon,” in which these Mexicans drove off. They went away at a rapid rate.

The witness Koch testified practically as (lid the other witness, and that when they went out of the saloon Slocum stumbled and Refugio Gonzales hit him. The other Mexicans went out of the saloon at the same time. Slocum and Luna were outside. Witness ran out of the saloon some 30 or 40 feet, and saw a bunch of Mexicans hitting Slocum, and defendant was among them, and heard Slocum say, ‘Take that knife out of my back.” The little Mexican Luna was on Slocum’s back. The witness says it was dark; that the lights were on while he was in the saloon. Mr. Hardin, the former witness, pulled the Mexicans away from Slocum, and as Slocum started back to the saloon he heard one of the Mexicans say, “Vámonos pronto; subite el vagón,” which translated is, “Let’s go quick; get in the wagon.” Mr. Hardin pulled them off; the defendant and his brother had hold of Slocum, so did Dion-ieio Soto have hold of Slocum’s arm. This is the substance of the state’s case.

This is in some respects contradicted by the defendant’s testimony. The serious question in the case, to the mind of the writer, is whether or not the circumstances environ-ing this difficulty were such as to elevate it above manslaughter, but taking the state’s case as above detailed, we are of opinion that the jury was justified in finding that there was murder in the case; that is, that the stabbing and all the environments show malice and deliberation in the killing beyond the question of sudden passion from adequate cause. The weapon used was a knife. What character of knife is not shown, and did not seem to enter particularly into the trial of the case, but the evidence shows it was a large knife because it went in far enough to kill the man suddenly, and the evidence shows that the wound .was at least 5 inches in depth, a stab in character.

Under the facts detailed we would hardly feel justified in disturbing the verdict, and the judgment is therefore affirmed.
      ®=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 200 S.W. — 26


author: BRENDBRGAST, J.

text:
    THOMAS v. STATE.
    (No. 4803.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    Homicide c&wkey;234(7) — Sufficiency of Evidence.
    Circumstantial evidence held sufficient to sustain the conviction of murder of defendant’s father.
    Appeal from District Court, Ellis County; P. L. Hawkins, Judge.
    Prank Thomas, Jr., was convicted, and appeals.
    Affirmed.
    E. B. Hendricks, .Asst. Atty. Gen., for the State.
   BRENDBRGAST, J.

Appellant was convicted of the murder of his father, and his punishment assessed at 99 years in the penitentiary.

The sole question for determination is whether or not the evidence was sufficient to sustain the verdict.

Appellant himself testified and denied substantially every incriminating circumstance which had been testified to by the various witnesses against him. In many instances he said that where the several witnesses had testified to incriminating facts against him that they had lied. Every witness against him was apparently, if not really, a disinterested and unprejudiced witness. However, their credibility was a question for the jury and the lower court to determine. It is clear that by the verdict and judgment they believed the witnesses against him, and did not believe him on the controverted points. The evidence of his guilt was wholly circumstantial. The court so told the jury, and gave a correct charge thereon, and submitted every issue in the case by an apt charge. No complaint was made to the charge of the court in any particular.

It is not deemed necessary to give every item of the testimony tending to show appellant’s guilt. Only a brief summary of the material facts, established by the evidence will be given.

On the night of December 27, 1917, between about 1 and 2 o’clock appellant’s father was brutally murdered while in bed asleep. The instrument used was the deceased’s own axe, which was found in his house with blood on it. Deceased, with it, had been chopped in the head, one arm almost severed from his body, and one cut in his breast, the latter wound so deep as to perhaps go to the back, if not through. These wounds caused instant death.

By Ms own testimony appellant showed that he had gotten out of the penitentiary on May 23, 1916, and at once went to his father’s, who was living on a farm in Ellis county about three miles from the town of Alsdorf. He had no means, and by his own testimony gambling seems to have been his business. He had been living at his father’s, or making it his headquarters, and for some time and up to the morning of the day when deceased was murdered that night a certain negro woman had been living at his father’s for some weeks. Appellant had been keeping her there. Several witnesses testified that at different times, shortly before the murder, he had tried, sometimes with success, and at other times without, to get money from his father. They also testified that his father along about this time repeatedly insisted to appellant that he should go to work, and that appellant failed or refused to do so. They testified also that his father repeatedly demanded that he and said woman too should go to work or leave his place, and finally at his insistence appellant and said woman did leave, moving on the moining of the night deceased was murdered.

Robert Whitten had lived and worked for deceased from August until deceased was murdered. Among other things, he testified:

“Defendant and his father did not get along so well. The old man was always saying that that boy would get into trouble, just laying around there; he said he wanted him to leave there; he wasn’t doing anything only just laying around there, and eating up his grub and feeding that woman off of him. I heard old man Frank Thomas tell defendant that he wanted him to move. The old man would start to talking to the boy, and the boy would get. up and start off; would not have any words with the old man. Defendant said, ‘I am going down this morning; if papa don’t pay me he is going to have hell.’ ”

He further swore that said, woman cooked breakfast on the morning before the murder that night, and that when she came back in the room she sat down and appellant sat in her lap, and said to her:

“I would rather see you move as see papa mistreat you. I am getting damn sore of the way he is mistreating me, telling all the people I am beating him out of his money. I would rather see you move.”

They both did move from deceased’s that morning. He further swore:

“I heard his father tell him he wanted him to leave there lots of times, and when his father would say anything to him, he would stand up and look at him and would go on off. Defendant worked regularly for a while there, but after that woman moved there he didn’t work any, would not pick any cotton; only sometimes he would go in the field and pick a little; would pick about a hundred pounds and go on back to the house. Defendant and this woman would not work, and that is the reason old man Frank Thomas wanted them to leave there, so he could get somebody else in the room so they could pick the cotton. He said defendant and this woman were around there, wasn’t doing him no good, and eating up his grub, and wasn’t picking any cotton.”

He also swore that he heard deceased tell said woman to get out, and further:

“Defendant would be kind to his father at times, until his father would not let him have it, and then he would get mad. When defendant would get mad he would talk about it. He said his father would let everybody else have money; let strangers have it quicker than him. Defendant told me that. Sometimes he told his father that.”

He swore a week or so before the murder:

“I heard the old man tell defendant lots of times to move, but I could not say just exactly when he would tell him that. Deceased said, T want you all to get away from here; you won’t help me pick cotton, just laying around here — help me eat up my grub — I -would rather you get out and let somebody else have the house that would help pick cotton;’ ” that said woman was present on that occasion.

Will Jones testified that:

A short time before the murder appellant came to him, in his field and told him about how his father had been treating him, and that he was feeling a little sore. “lie had done got so sore until he didn’t feel he could stand it much longer, and the best thing he could do was to get him a little money and light out, because he said there was liable to be some trouble if he didn’t do it. * * * If I'don’t he is going to have hell with me; that is all there is to it.”

Sebe Peterson testified that he had stayed and picked cotton at deceased’s some month or two shortly before the killing; that when deceased would get after appellant about not working, “defendant would tell his father he didn’t want to work.” He swore that about a month before the murder “I had a conversation with defendant one morning in which he just told me that he was awful sore at the old man. He told me he was going to kill somebody before the year was out.”

INelson Thomas, a brother of deceased who lived at Groesbeek, was phoned of the death of the deceased, and went to his funeral; that while there he met appellant and had a talk with him, and he swore that appellant admitted to him he had made remarks that he had to leave there or he was going to kill his father, but he did not mean it. Said witness Whitten further swore that while said woman lived at deceased’s appellant slept in the bed with her.

It was shown by several witnesses, neighbors of deceased, that some two or three of them were at deceased’s with him and said witness Whitten, who lived there, the night before deceased was killed; that they remained with him, until about midnight, when they all left and went to their homes, leaving only deceased and Whitten there. Some two or three witnesses swore that they went from a certain locality on one side from where appellant lived, in an automobile, from a party that night, just before 12 o’clock; that some short distance before they reached appellant’s house they passed appellant going in the direction of his father’s; that this was about one-fourth mile from his father’s; they all identified appellant, and swore that they passed him at this point; that they went on beyond deceased’s some few huh-fired yards, where one of the party who was ■in the automobile lived, and he got out.

Whitten further swore that he and deceased went to bed shortly after these neighbors left, deceased sleeping on the bed and he on the floor on a pallet; that they talked awhile after they had lain down, but they both went to sleep; that between 1 and 2 o’clock he was awakened by a noise in the room. He swore:

“When I woke up I heard something- go just like a hog, like when you strike a hog, so I woke up and started to raise up on my pallet. I laid there, and then I heard a lick strike. X started to get up, and I heard a ‘tong’ go again, and I just laid there. I was afraid to get up. I heard them at the door, and then I heard them strike another lick, and looked to me like somebody stood there a little bit after they struck the last lick, and I heard them tiptoe to the door. I could hear them when they went out and jumped off of the front porch and run into some bedsprings.” That he then got up, struck a light, and found that deceased had been killed, and the axe with which he had been killed. That he then called to different persons over the phone, trying to got them to come there, and aroused several persons, among them an officer some miles distant, who later came to the deceased’s. Not much hunting for tracks was had until after daylight the next morning, but persons were kept away from the locality so as to avoid other tracks being made.

Whitten further swore:

“Whoever killed deceased jumped off of the porch and ran into some bedsprings. I did not take a shoe and measure those tracks to see if they would fit certain tracks, but Mr. Hargus did, and I saw him do that. He took little Urank’s shoe. That shoe fit that track. They traced that track down across the field, cotton patch. • Mx\ Hargus taken a stick and measured the track, and then came back and measured by the shoe.”

Another witness, Will Jones, testified that he with another examined some tracks that were made around the house on the east side next to the kitchen, where a number of old bed springs were; that they traced these tracks across the field. They led across the field towards town, and they were fresh tracks. It was shown that it was three miles from’ deceased’s house to the town of Als-dorf and seven miles from Alsdorf to the town of Rosser, and six or seven miles straight across the country from deceased’s house to Rosser. Several witnesses swore that between 3 and 4 o’clock, perhaps about 4, appellant appeared afoot at a negro hoarding house, knocked, and was admitted, went to bed, and remained there until after breakfast the next morning. Tlie distance from deceased’s to said boarding house would show that appellant could have reached it when he did after committing the murder.

The evidence, and none of it, points to any person other than appellant as the person who committed the murder. It all taken together reasonably excluded the idea that any other than appellant killed his father. The jury saw all the witnesses and appellant when they testified. They saw their manner of testifying, and were the exclusive judges of their credibility. A fair, experienced, and learned trial judge also heard all the evidence, and saw the witnesses when testifying. They found appellant to he the guilty party. The evidence was sufficient to justify their finding.

The judgment will therefore be affirmed.
      ig^For other ease ( see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes