282 S.W. 804 | Tex. Crim. App. | 1926
Conviction is for unlawfully carrying a pistol, punishment is by fine of $100.
When the case was called for trial and after the state had announced attorneys for appellant stated to the court that they desired to prepare and file affidavit that appellant was under seventeen years of age and should therefore be proceeded against as a "delinquent" under the law relating to juveniles. (See Title 16, C. C. P., 1925 Revision, formerly Title 17, C. C. P.) Accused made this affidavit. After it was filed the state withdrew its announcement of ready on the main case and without objection from either party the trial judge proceeded to hear evidence to determine whether appellant was under seventeen years of age. (Art. 1084, C. C. P. 1925 Rev., formerly Art. 1195.) The judge found appellant to be over seventeen years of age, and he was then tried on the merits of the case and *10
conviction resulted. The evidence warranted the conclusion reached by the judge on the question of age. As we understand the record appellant makes no contention on this point but only urges that a reversal is demanded because the father of appellant was not notified of the proceeding. He relies on Ex parte Cain, 86 Tex.Crim. R.,
If the father was desired to testify on the question of age accused could not rely upon the failure to "notify" required under delinquency proceedings, but should have used some diligence to have him present, and in event of his absence requested a postponement of the hearing.
No error appearing from the record the judgment is affirmed.
Affirmed.