*1 WOODLEY, Presiding Judge (concurring) Walker, questions our propounded As to Officer hold- ing I in the affirm- should be that there was no error. concur ance of the conviction.
Howard E. Hultin v. State 33,515. October Rehearing Motion Overruled November
MORRISON, Judge concurred. ap- Scott, Jr., Morris, Houston, H. and F.
William Ellis pellant. Attorney, Dally, P. Briscoe, Carl E. F. Lee
Frank District Ward, Attorney, Houston, Jr., and Leon Assistants District Attorney, Austin, Douglas, for the state. State’s McDonald, judge. offense, punishment
Murder with malice assessed penitentiary at confinement life. regarding controversy of this
Since there facts little case, briefly: we shall state them Wayne Lethcoe, evening April 21, Michael
On the South, appellant, Jimmy and observed and Jean Janet Travis Street, age, walking then ton, down Idaho Hous- sixteen Faye After about six feet behind Linda Ruble. distance, appeared was hit- had her for some he followed boys running appellant and ting her, and the started toward they girl past ran them and fell approached, As Linda. disappeared in a street, behind some bushes and him, boys at driveway. The and found on, kids,” followed residential them, then “Come and said which time boys. boys sepa- then knife and toward drew a started large began running. Appellant the knife —a threw and rated Lethcoe, striking him in the back Michael hunting knife— at and cutting through flesh close to his shoulder blade and this, appellant cutting his arm. After glancing off then girl, Linda, boys approached little disappeared. The bleeding badly. Accompanied lying in the street boys, hospital. to a Linda was taken She two her father on arrival. pronounced dead an oral arrest, appellant made both a written and After his discovery knife he confession, he said which led to the threw in the bushes. following: confession, appellant his written related girls
He boys had tell their relations with heard school “ feel- had wondered He had the ‘what it would be like’.” ing girl go that if refuse he asked a out with him she would ques- day and he did not want “turned to be down.” On got p.m., go tion he out home about 5:15 but decided intending girl,” girl into have “relations with to force the some such relations since he “did turned He not want to be down.” hunting knife, long, took his or fourteen inches about twelve put init Idaho he belt and walked toward Street. When Faye walking reached that he toward a street observed Linda grocery Bayou Road, store on he con- Chocolate at which time cealed back himself some and waited for her to come bushes her, coming up from the store. he her he When saw walked telling right her had knife turn he that she should take a *3 on girl only began New York The him and Street. looked at walking away, stabbing appellant at which time started her girl screamed, dropped groceries with his knife. The the she carrying, way, Appellant was ran a little and then fell. was “jumped” by boys the to two aforementioned as he tried enter a wooded area to the south of Idaho Street. He the stabbed boy him, Lethcoe and threw knife after his at which he retrieved thereafter, Shortly the knife and returned as related in home. confession, appellant the an officer came to house took the happened.” “around the corner this to where Appellant insanity, expert offered the defense and an witness in his testified behalf that he was insane at the time he committed offense. testimony witnesses,
This was rebutted the state’s jury against appellant upon found this issue. fully appellant order to understand issue raised necessary present history juvenile a of his case in the court: 21, April 27, 1960, The April offense occurred on 1960. On County attorney filed, through of Harris district his as- juvenile sistant, alleging petition appellant a court was delinquent child, alleging grounds an therefor assault upon Wayne murder, alleg- Michael Lethcoe with intent ing aggravated upon boy. July count of second assault On 1960, appellant’s attorney, Scott, Jr., William H. who re- presented delinquency proceeding him the court also him in the court represented criminal district of Harris alleging County, supplemental petition filed a voluntarily appellant did, April 21, 1960, malice on and with aforethought Faye stabbing a knife. kill Linda her with Ruble attorney supplemental The district to strike the filed motion petition. judge argument court heard presented briefs on the issue and then overruled with though guilty, Appellant pleaded motion his to strike. then attorney, Scott, aggravated Jr., William H. assault Faye Linda Ruble. On Michael Lethcoe and to murder of July a 'delin- court found to be child, quent on account of commission of two offenses. Council, Appellant then to the Texas Youth committed which, Boys turn, placed him in School for Gates- State beyond period ville for an time not indeterminate to extend years reaching twenty-one age. August 26, 1960, became On seventeen age. appellant by the Harris An was returned murder, County grand jury September on Appellant aforethought, of was taken Linda Ruble. malice including proceedings, All trial Houston for trial. further occurred, conviction, then, after became seventeen and years being age, trial in Criminal District set for County charge on a of murder with malice and of Harris Court *4 in beginning November said and ter- the trial court minating punishment in on December conviction imprisonment. assessed life argument, very
By appellant’s counsel brief and oral able upon propositions, appeal in which predicates this five material fundamental trial court committed that the insisted error. first, propositions relied shall, enumerate the various by appellant: says that com- appellant error was proposition,
In his first denying quash his the by in motion trial court mitted the jurisdiction, reason for want person appel- alone, had over juvenile court offense, previous the same conviction of his lant because Delinquency preserved Appellant under the Juvenile Act. by exception matter his 4. formal bill of Appellant in complains next over- that the trial court erred ruling quash by his motion reason of the course the indictment delay delay by attorney, of deliberate was which district deprive rights calculated under the Juvenile his Delinquency Appellant un- Act. insists in his motion and disputed attorney evidence adduced thereon that the district de- liberately delayed presenting the of the offense to attenion grand jury, exercising purpose preventing for the him from rights law, his thereby deprived aas under the him right. of such preserved fundamental This matter as formal exception bill of No. 6.
Appellant complains next that the trial court committed er- ror overruling quash in by his motion to the indictment rea- or, son jeopardy, alternatively, of double conviction, former be- he previously subjected cause had been to the exercise of the police power of the state available to in his conviction as juvenile delinquent undisputed —which motion and the evidence adduced thereon before the court reflected that had previously adjudged delinquent been by reason of the same offense for he Appellant which was here pre- indicted. point exception served this his formal bill of No. 5.
By proposition, appellant fourth complains, follows, his (a) overruling that: The trial court committed error in testimony Jimmy Hugh motion to exclude the South relative day to events witnessed him ques- on the homicide tion, undisputed which motion and evidence adduced thereon previously before the showed that this witness had test- against (appellant) juvenile hearing him concerning ified preserved matter appellant’s same offense. This exception (b) No. 1. formal bill Error was committed overruling testimony motion to exclude the of Michael Wayne Lethcoe as events witnessed him on the date homicide, reflecting the motion and the evidence that said previously witness had testified in hearing preserved on same offense. This matter *5 exception (c) formal bill of No. 2. The trial court committed overruling the motion to exclude suppress error in and the writ- by police from ten elicited statement officers previously statement had been introduced in evidence —which hearing in him the as to the same offense. This preserved exception matter was 3. These in formal bill of No. (a), (b), (c) complaint appellant’s subdivisions constitute brought proposition. in forward his fourth
Lastly, appellant complains of the action of the trial court conviction, overruling special in denying plea previous of 7; preserved exception which in of complaint is formal bill refusing by further error court’s is claimed reason of trial being jury, him permission present special plea to the such preserved exception in formal bill of No. 8. contentions, they pred- appellant’s
As we are all view upon eon- interpretation icated and arise as a result of his 2338-1, commonly of strutcion referred as Art. Delinquency Juvenile Act. (c) act must be Arts. 5143
Said construed connection with 5143(a), 5143(d), subsequently enacted, and with Art. V.C.S. any 2338-1, “delinquent means
Under Art. the term child” age eighteen, person female age of ten and under the over person any age of under the over the ten and male years: (a) any penal state seventeen law this who violates grade any penal felony; (b) law of or who violates punishment grade where the this state of misdemeanor jail; (c) prescribed may by confinement for such offense be habitually any penal or law of this state of violates grade punishment prescribed for such of misdemeanor where the habitually by only; (d) or who violates pecuniary offense is fine (e) state; any this penal political of a ordinance subdivision habitually compulsory law school attendance or who violates habitually deports himself as state; (f) so or who others; (g) injure endanger of himself or or the morals or health persons. habitaully immoral with vicious and associates or who by may appeal be taken provides that an 21 of the Act Sec. Appeals and the any aggrieved party to the Court of Civil by of error or may Supreme Court writ carried to certificate, other cases. civil Legislature, 48th passed Act Legislature. It construed has been the 56th amended many the courts. times *6 considering Act we must first examine Juvenile
pertinent statutory provisions: constitutional and V., 8,
findWe that Art. Sec. of the Constitution of this state original jurisdiction grade vests in all criminal of the cases felony C.C.P., original in the district courts. Art. vests jurisdiction felony grade in all criminal cases district courts and criminal courts. district 51, C.C.P.,
Art. have criminal enumerates courts that jurisdiction. among The court is listed them. not
Art. Sec. of our person Constitution that no states shall be held to answer for criminal on offense unless an indictment grand jury, except of a punishment in in cases which the imprisonment fine penitentiary. than in the other Art. Sec. of the person, Constitution states that no offense, put jeopardy liberty, same be shall twice or life person again put offense, nor shall a be trial for the same after guilty jurisdiction. a verdict of competent a court of 31, V.A.P.C., provides
Art. that: person “A for an offense committed before he arrived at the age years of seventeen shall in punished no case be death.” article, repeal Juvenile Act did not but should Dearing Rep. 6,
construed with it. 151 Tex. Cr. S.W. 2d 983. judge gave
The trial instructing effect to this statute jury punishment applicable. as to the perusal foregoing statutory
From a constitutional and provisions, legislature it is obvious that the did not vest exclusive, continuous, courts of uninterrupted this state past over males seventeen were felonies, although seventeen-year-old indicted these same previously adjudged by males have been court to be delinquent children. apparent
It is also that the courts of this state have jurisdiction. no criminal
Although elemental, vividly that an also clear accused grade cannot be a criminal tried Texas for offense felony except jury. grand an on *7 Court, and appeals, Supreme
The various courts civil many this In all the Juvenile Act times. have construed every instance, ex- construed —without these courts have all juvenile ception— proceedings criminal to be civil and not proceedings. gravity questions presented here
On account of the of the carefully impression, and because this a of first we have is case many reviewed all them of these We shall set forth cases. below: correctly Supreme think the Juvenile Court construed only al, Wilson, al, 269, Dendy,
Act in v. et 179 2d not et S.W. holding stating it to the Act does be constitutional but also that punish not undertake and a for the commission to convict child child,” “delinquent of a It and this definition crime. defines a child, under proceeding such a furnishes basis only the trial whether Act. issue to be determined at meaning of the “delinquent is a child” within proceedings A not a criminal court. The Act. court is customary nature, rules are civil in and the act followed. in civil cases must be evidence In 2d it was held that a Robinson v. S.W. juvenile proceeding proceeding no civil and that it made was a legal arrest, illegal, difference whether was under or time was made. the confession Judges Dearing supra: Graves stated punished reason is confined and “While the punished for being confined delinquency, not and of his he is com- burglary. True that he has because crfme penal, the rea- as such was an offense denounced mitted having delinquency determined and his con- of his been son child; delinquent being a the fact of his finement caused burglarious act, his de- although in the of such absence and established, confine- not nevertheless his linquency could being punishment, delinquent- ment, is for and therefore burglar.” being a convicted not for In Ex parte Rheude, involving petition Walter Lewis corpus appellant alleging a writ lawfully un- habeas that he was liberty judg- of his under of a
restrained virtue county County, ment issued out as court of Reeves juvenile court, Woodley court, through Judge speaking on April Rep. reported 163 Tex. Cr. S.W. lawfully 2d held restrained under (c) any question terms 2338-1, of Art. validity judgment to the of the statute or the or commitment courts, custody under which civil was held is for the corpus. on habeas (civil (n.r.e.), re appeal), 2d 475 Gonzalez 328 S.W. proceeding delinquency
was stated that in a “A determine jury may only by trial complying be had Texas Rules of Civil Procedure.” further It was held Gonzalez delinquency that evidence need be sufficient to establish *8 beyond doubt, case, a reasonable as a criminal but must be of probative adjudicate delinquent, value to as a ac- cordance of with the Rules Civil Procedure. parte Yelton,
Ex 285, 298 2d S.W. held that the Court of jurisdiction Appeals corpus proceedings. Civil Lazaros, had of habeas al, 972, et (civil appeal), v. State 2d held 228 S.W. that proceeding declaring a delinquent child to be ais civil proceeding. not a criminal Thomasson,
In
(Feb. 16, 1955),
State v.
“The not to convict but to By sought and direct. this action it is not to convict these children of the of a crime commission measured Texas felony, adjudge standards quent be a but no them to delin- they committed, in that have such an offense.” State, 33,278, The case Wood v. 349 S.W. 2d opinion May this court said in 1961: delivered “At the time of the trial age was, therefore, 17 or over and amenable to prosecution charged. for the crime with which he was adjudicated previously fact that he had been de- linquent trial, and was still such at time indictment and deprive try did the district court of him 434 long
so he as at time of indictment and trial was of said age years. authority of 17 con- We know no trary any.” nor we have been referred to State, the case v. where the Roberts S.W. 2d advanced, same contention the court said: long cannot “We to the doctrine that as subscribe school, was under a commitment to the State is, twenty-first birthday, until his could not be further he punished any reach offense committed until after he had twenty-first birthday. ed such do know that there allowing precedents numerous an are his trial offense juvenility, occurring age committed while such trial juvenility. age passed he had Arrendell v. after State, such See 1096; 60 Tex. R. McLaren v. Cr. S.W. Dearing 669; 85 Tex. v. S.W. Cr. R. S.W. * * 2d 983 *.” construing provisions After of the Penal Code and of analysis statutes, Act an of these Juvenile exhaustive court, Bearing State, supra, concluded:
“Having the trial court had reached conclusion legal right try appellant for the offense with which right charged, he to take him from stood it also had the bring Training him the bar of State’s School before justice provided the Penal Code of this to be dealt with as Otherwise, prosecution he immune from State. would be This, (21) years. twenty-one he had until reached *9 Legislature at the opinion, in was not the intention of the our juvenile they the statute.” time enacted provisions of and an examination of the Arts. 2338-1 From noteworthy (a), that distinction observe no 5143 or char regard delinquency, based on the kind “in is made violation, delinquent specifically makes a child of law but acter any” prescribed provi and violates the of him who is under Jur., defining “delinquent child.” 15 Tex. a of said statutes sion 2d citing S.W. 7, p. Davis v. 1068. Sec. jur- jurisdiction a that has competent means court
A court of juve- p. A 539. Tex. Jur. Sec. of the offense. isdiction juvenile. jurisdiction a It is civil court. over a has court nile jurisdiction felonies. The district courts and over no It has jurisdiction original criminal criminal district courts have grade felony. cases of of the “jurisdiction” jurisdic- requisite
One the elements matter,” subject “subject tion expression over the The matter. jurisdiction, problem used with refeernce criminal to the law, refers to the 190. The offense. 16 Tex. Jur. 2d Sec. term “jurisdiction,” statute, three as used in the “includes the necessary court; essentials of a court the the [sic] authority subject matter; must person have over the and the power judgment it particular must have to enter the rendered.” 16 Tex. Jur. 2d 200. Sec. said,
From apparent what we it have the Juvenile Delinquency (Art. 2338-1) is, entirety, Act in its a civil statute proceedings including the pro- thereunder the commitment by 5143d, V.C.S., vided Art. civil are and not criminal nature. earlier, not, As personally, plea noted did enter the guilty Judge before J. W. Mills the court. His attorney plea guilty judgment entered the for him. The commitment do cerning not reflect was admonished con- consequences plea entered for him. He was murder, not judge tried for and the not does so recite. He was by jury tried allegation without a court on an not contained by in an grand jury. returned While is true attorney appellant pleaded guilty that the to the two offenses alleged petition supplemental petition in court, judgment of that court reflects that it found the al- legations and, supported evidence, true thereupon, delinquent court found to be a child. In no sense of appellant guilty word find did murder appellant by disposition certainly court was pursuant to a conviction for criminal murder district courts of this state. 1049, where, by agree- of Dunn S.W. ment, appellant jury composed had been tried of eleven “
jurors murder, offense court held that ‘One tried jury required by jeopardy, in number than law is in no less may again’.” opinion and he say be tried further “To states: jurors’ nothing that ‘he was tried before 11 states constitu- *10 ting jeopardy.” appellant’s all
Since contentions revolve around the construe- V.C.S., Act, 2338-1, tion of feel the Juvenile we that Art. unnecessary separately to each contention. answer fully think appellant’s contention is answered first opinion State, supra. the Dearing of this v. court
Appellant’s may the ob- second contention be answered juvenile 2338-1, give servation that Art. does not to a right immediately following the commission vested of against be tried merely provides proceeded an if he or offense. It that she reaching respectively, such before the of 17 or proceedings v. shall in the Court. Elliott Juvenile S.W. 2d 218. concerning jeopardy
One answer to the is that contention juvenile acquired the over the offense never being prosecuted crime which is now because that injected by appellant’s proceedings counsel. into may long admit It has been the rule in this that counsel state incriminating agree the existence of or that his client facts guilty charged. 2d of the crime 278 S.W. Crawford plead- apply cited. This would written and cases there ings as well oral admissions. testimony
Appellant’s witness contention as to the by calling fact South is answered attention to the South 2338-1, actually present trial. Sec. of Art. testified supra, merely prohibits into evidence the introduction reproduction of judgment delinquency proceedings or a clearly hearing. It not the evidence adduced at such competent legislature prohibit proof by witness intent of merely hear- he testified to same facts because ing. complaint concerning of his
Appellant’s the introduction confession, introduced written which had theretofore been had proceedings, presents no error. confession counsel, hearing by appellant’s been introduced at the charged him murder. alone with the concerning question jeopardy dis- we have said What submitting necessity discussing propriety of poses of the jury. question however, add, provisions 13 of Art. Sec. We will
437 2338-1, prohibiting use evidence adduced the child juvenile court, must be construed connection Secs. with 32 5143(d) dealing subject. and 33 of Art. same do not construe provision these statutes to mean that such makes one who hearing testify testified in a incompetent in a criminal trial in the district court. Sec. 13 of Art. 2338-1 only given juvenile court, excludes the evidence it also disposition excludes “the child.” adjudication delinquency only days was made 36 be-
fore birthday. attained his 17th It is also evident from the 21, 1960, only record that April committed murder on days four months prior and five to his 17th birth- day, August 26, became 17 old on 1960. Peterson v. State, 235 appellant’s S.W. 2d refutes contention as to un- delay. due my interpretation While might possible make it for some
ten-year-old murderer to be incarcerated at Gatesville as a de- linquent until he birthday attains his seventeenth and then be given indicted and sentence, tried and a life the writer feels power that the prevent legislative such occurrence is a and not judicial as, wisdom, legislature function. Just in its enacted Art. V.A.P.C., may it, wisdom, so in its take care of such contingency that, remote, while appellant’s could arise —as pointed counsel ably out prepared exhaustive and brief. Appellant earnestly insists that Van Hatten v. holding provisions S.W. of the delin- quency character, statute are criminal in controlling. here examining Van Hatten we find that this decision was handed down in 1924 and came under the terms of Art.
C.C.P., Acts of 1911. This case approval cites with parte Ex McDowell, 172 S.W. which pursuant was a 1914 decision to the terms of the same article of the Code of Criminal Proce- dure, 1911, as cited in the Van Hatten case.
It is evident to us that the Juvenile Act criminal in na- ture at the time of the decisions these two cases and that the juveniles article controlled disposition and their was codified in the Code of Criminal Procedure of this state.
We think that both Van Hatten and McDowell must be dis- tinguished holding parte Rheude, from the of this court in Ex 2338-1, after Art.
supra, and other cases decided any doubt, here so hold. resolve we enacted. In order to State, 237 Appellant the cases of Watson also relies (1932), (1922), 2d 987 S.W. and Walker v. S.W. under the old law of which cases construed both legisla- prior the enactment criminal code article of the *12 are here concerned. present articles with which we ture of the controlling. regard as here these cases doWe merit. are all without appellant’s contentions feel that abundantly sufficient They The evidence are all overruled. support the conviction. things affirmed. judgment trial court in all MORRISON, Judge, (concurring). conviction because was agree
I to the affirmance of this charge and introduced appellant’s counsel made juvenile hearing. the murder at about evidence Segoria Soco State 33,841. October Rehearing November Motion for Overruled appeal. attorney appellant of record on No Jr., Attorney, Robertson, H. Briscoe, District Samuel Frank Houston, Attorney, Douglas, and Leon State’s District Assistant Austin, Attorney, for the state.