Tippins v. State , 86 Tex. Crim. 205 ( 1919 )

The contention that the facts would not bring the offense within any of the sub-divisions of the statute defining aggravated assault, the appellant being a minor, if sound which we question (Hand v. State, not yet reported) would not avail the appellant. The prosecution in Miller v. State 67 Tex. Crim. 654, 150 S.W. Rep., 635, to which we are referred, was not one under the statute pertaining to juvenile delinquents. The Delinquent Child Act makes one subject to its terms who is under seventeen years of age, and who "violates any law of the State." See Art. 1197, Code of Crim. Procedure, as amended in the Acts of the Thirty-Fifth Legislature, Fourth Called Session, Chap. 26, p. 43.

The conviction in the instant case involves the finding by the trial court that the appellant made an assault upon a female child calculated to inflict shame and disgrace. Whether that assault be an aggravated one or a simple assault, it comes within the statute because it constitutes a violation of the criminal laws of the State, and authorized the trial court to render the judgment from which this appeal was taken. Doubtless there are provisions of the juvenile law which ought to be changed. Whether it shall be done or not is a legislative and not a judicial question. The Delinquent Child Act has been upheld in many of its provisions, and while it stands unchanged the courts must enforce it as they find it. See Ex Parte McLoud, 82 Tex. Crim. 299, 200 S.W. Rep., 394; Ex parte Pruitt, 82 Tex. Crim. 394, 200 S.W. Rep., 392; Ex parte Ellis, 82 Tex. Crim. 641, 200 S.W. Rep., 840; Miller v. State, 82 Tex. Crim. 495, 200 S.W. Rep., 389; McLarin v. State, 82 Texan Crim. Rep., 449, 199 S.W. Rep., 811; id., 85 Tex.Crim. Rep., 209 S.W. Rep., 669.

The motion for rehearing is overruled.

Overruled.