Miller v. State , 82 Tex. Crim. 495 ( 1917 )

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 habeas 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 statutes law also under consideration and consultation. Among them were No. 4591, Ex parte Ethel McCloud from Harris, and No. 4652, Ex parte Walter Pruitt 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.Crim. Rep., 28 S.W. Rep., 689; Ex parte Berry et al., 34 Tex.Crim. Rep., 28 S.W. Rep., 806; Legate v. Legate, 87 Tex. 248, 28 S.W. Rep., 281; Telschek v. Fritsch, 38 Tex.Crim. Rep., 40 S.W. Rep., 988; Ex parte Calvin, 40 Tex.Crim. Rep., 48 S.W. Rep., 518; State ex rel. Wood v. Deaton, 95 Tex. 243, 54 S.W. Rep., 901; Rice v. Rice, 24 Texas Civ. App. 506[24 Tex. Civ. App. 506], 59 S.W. Rep., 941; Ex parte Reeves, 100 Tex. 617 [100 Tex. 617], 103 S.W. Rep., 478; Pittman v. Byars, 51 Texas Civ. App. 83[51 Tex. Civ. App. 83], 112 S.W. Rep., 102; Ex parte Fuller, 123 S.W. Rep., 204; Finney v. Walker, 144 S.W. Rep., 679; Hall v. Whipple, 145 S.W. Rep., 308; Ex parte Singleton, 72 Tex.Crim. Rep..

In Ex parte McDowell, 76 Tex.Crim. Rep., 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.Crim. Rep., 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, 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 cases.

In reviewing these and other cases and our statutes on the subject of a delinquent child in said Walter Pruitt case, 200 S.W. Rep., 392, and said Ex parte McLoud, 82 Tex. Crim. 299, 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 be 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, Penal Code, which is: "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 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, but 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 ten or eleven 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 Criminal Statutes.

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's Ann. P.C., p. 99. It was admitted before appellant had testified, and not solely to impeach him, but to tend to prove the 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, can not be impeached by showing he has been convicted of theft, within a reasonable time before the prosecution, would not be admissible. For such evidence would be admissible for impeachment. 1 Branch's Ann. P.C., sec. 167.

For the errors above pointed out the rehearing is granted and the case now ordered reversed and remanded.

Reversed and remanded.