McLaren v. State ( 1919 )

This case is again before us on appellant's motion for rehearing, which presents but one question, viz: that the finding of the District Court of Williamson County that the appellant was under seventeen years of age in a former and different trial of appellant than the one from which this appeal is prosecuted, ipso facto made all subsequent proceedings such as judgment, sentence, etc., absolutely void.

Appellant's counsel based this contention apparently on the statement and assumption that because of this court's decision on a former appeal of this case it is now the settled law of this State that Article 1195 C.C.P., is mandatory, and that, therefore, when the court below made such finding of fact relative to the age of appellant in said case, that the application of the settled law was instantaneous like the immediate action of an automatic brake, and that the wheels of justice in the felony trial in said court were legally and finally stopped by such application. If his interpretation of what is necessary to constitute settled law be correct, and obtained at the time of said former trial, then it is clear that under the then settled law the trial court had a complete right to find not only that appellant was under seventeen years of age at the time of his trial, but also to refuse to dismiss the felony prosecution pending against him, and, in the exercise of the court's discretion, to proceed to try appellant therefor. We make this observation for the reason that in the last decisions rendered by this court interpreting said Article 1195, before the said first trial of appellant, it had been held that the trial court was empowered to do just as the court below did in said cause at said time, (See Davis v. St., 80, Texas Crim. Rep., 118, 188 S.W. Rep., 990; Townser v. St., 79 Tex.Crim. Rep., 182 S.W. Rep., 1104) and it is apparent that if the court had acted otherwise than it did, it would have been in direct conflict with such settled law. This court's decision in the former appeal of this case, (199 S.W. Rep., 811) rightly interpreted, holds that in any case where a juvenile is charged with felony, and makes the statutory affidavit as to his age, that upon an ascertainment of that fact, as being under seventeen at the time, would make it the duty of the court to remand such person to the Juvenile Court for trial. This court did not reverse and dismiss the case when brought before it on said former hearing, as would probably have been the case if appellant had been held under a void judgment or sentence. We observe that a judgment of this court holding an indictment bad would not have the effect of making void all judgments of conviction theretofore had under similar indictments which for reasons sufficient the court held to be good. We state further, the judgment of this court was declaratory of the law and did not make the law.

An examination of Articles 1195 and 1199 C.C.P., with a view of ascertaining what would have been the duty of the trial court, according to appellant's contention, after the rendition of the former judgment of this court, discloses that if said trial court had proceeded, upon the receipt of the mandate of this court, to then file complaint against appellant as a juvenile, as required by the provisions of Article 1199, supra, it would have been confronted at the threshold of said proceeding with the fact that appellant was not then under seventeen years of age, and with the express mandate of Article 1195, that before a judgment of commitment could be entered committing appellant to the State Industrial School for Boys, it would have to be shown to the satisfaction of the court that he was then less than seventeen years of age, and it is further emphasized in said article that he must actually then be less than seventeen years of age, by specifically providing that such fact shall not be admitted by State's attorney but must be "proved by full and sufficient evidence." This is said in view of the fact that appellant's age as shown on said former appeal to this court, was more than seventeen years when the judgment of reversal was here entered, and necessarily more than that when the mandate of this court reached the court below. The logic of the contention of appellant might result in a patricide of the most pronounced type going scot-free. We can not agree with appellant's contention. Had the court below, upon the receipt of the mandate of this court reversing this case upon a former appeal, proceeded by dismissal of the felony charge, and a hearing upon a complaint filed against appellant charging him as a juvenile, and thus have attempted to do what appellant seems to contend should have been the proceeding, we think it clear that this could have resulted only in the trial court entering an order that appellant was not then a juvenile, and in such case, there being no question of jeopardy, it would have been the plain duty of the grand jury of Williamson County to re-indict appellant for murder, and it would follow that he being then clearly over the age of seventeen, the trial court, in the exercise of its proper jurisdiction, would have proceeded to try him on said charge as an ordinary felon.

The law will not countenance or require the doing of a useless thing; nor that its machinery of justice should perform extra labor where but one result could legally follow, and we hold that the court below did not err in not dismissing the case, and that it properly retained jurisdiction to hear and determine the same.

If the fallibility of human judgments and the difficulty in ascertaining in a given proceeding just what is the law as written, results in an apparent hardship, and in confining the appellant in the penitentiary instead of the reform school, it is to be regretted from his standpoint, but this court must follow that course and pronounce that judgment which to it seems the only conclusion it can reach by trying to follow the law as it understands it to be and as interpreted heretofore by the decisions.

The motion for rehearing is accordingly overruled.

Overruled.