Roberts v. State

ON MOTION FOR REHEARING.

GRAVES, Judge.

Appellant but reiterates the propositions presented to us originally that on account of the fact that at the time of the killing of his uncle he was a juvenile, and under the Act of the 48th Legislature, Chap. 204, p. 313, he was incapable of committing any criminal offense; that he was a ward of the state, being at such time under a commitment from a juvenile court prescribing his custody to the State Training School for Juveniles at Gatesville, Texas, and therefore this trial court had no jurisdiction over him.

His early commitment was shown to have been based upon some act denounced by the statute at some period previous to the killing of Mr. Pitts, and some service in such school was shown. Frequent paroles had been granted him by this same trial court sitting as a juvenile court. Various violations of such paroles were shown, and finally he was paroled to Mr. Pitts, while still under a judgment as a juvenile delinquent. Upon the killing of Mr. Pitts, this same court revoked this parole to Mr. Pitts, he being dead, and returned appellant to the custody of the authorities at such training school under his original conviction. Upon arriving at the age of seventeen years, appellant was returned to Johnson County and tried for the murder of Mr. Pitts.

Prior to- the instant trial appellant had never been tried as a delinquent juvenile for the killing of Mr. Pitts, and such is shown by the record wherein his parole was revoked. In said order it was shown that appellant, having been previously committed to such training school on September 27, 1944, he was thereafter paroled to Marvin Pitts, and the said Pitts now being dead, the juvenile was returned to the care, custody and control of such institution to serve his original judgment, said order being dated June 24, 1946, in Cause No. 18, in the matter of Isaac Roberts, a delinquent child. It is worthy of note that Mr. Pitts met his death on June 16, 1946, nearly two years after appellant had been adjudged a delinquent juvenile. This juvenile was returned to the state school, not for having killed Mr. Pitts, but his parole was revoked because the person to whom he had been paroled was dead.

We cannot subscribe to the doctrine that as long as this appellant was under commitment to the state school, that is, until his twenty-first birthday, he could not be further punished for any offense committed until after he had reached such twenty-first birthday. We do know that there are numerous precedents allowing his trial upon an offense committed while in the age of juvenility, such trial occurring after he had passed such age of juvenility. See Arrendell v. State, 60 Tex. Cr. R. 350, 131 S. W. 1096; McLaren v. State, 85 Tex. Cr. R. 31, 209 S. W. 669; Bearing v. State, 151 Tex. Cr. R. 6, 204 S. W. (2d) 983; Walker v. State, 119 Tex. Cr. R. 330, 45 S. W. (2d) 987; Stallings v. State, 129 Tex. Cr. R. 300, 87 S. W. (2d) 255; Hardie v. State, 140 Tex. Cr. R. 368, 144 S. W. (2d) 571.

In the case of Arrendell v. State, supra, this court proffers an argument that in the event a juvenile commits the crime of murder and is enlarged for many years, and then at his advanced age he be brought to trial for a murder many years old, if he be tried and convicted as a juvenile, we would find him as such only committed to such school until he has reached his twenty-first birthday, and yet he has long since passed such mile-post in age. The law does not expect such an impossible thing to be done.

We adhere to the views expressed in our original opinion, and the motion for a rehearing is overruled.