217 S.W. 380 | Tex. Crim. App. | 1919
Lead Opinion
The appellant was tried as a delinquent child, was found guilty by a jury, filed a motion for a new trial, which was overruled, and notice of appeal given. We fail to find in the record any judgment on the verdict of the jury, or any order of the court directing the disposition to be made of the appellant. In this state of the record, we think we are without jurisdiction to entertain the appeal. This is a criminal proceeding. See Art. 1197, title 17 as amended in the Acts of the Thirty-fifth Legislature, Fourth Called Session, Chapter 26. The requisite of a judgment sufficient to support an appeal will be found in Vernon's Texas Criminal Statutes, vol. 2, title 9, chapter 3, p. 847.
Because of the absence of the final judgment, the appeal is dismissed.
Dismissed.
Addendum
The contention that the facts would not bring the offense within any of the sub-divisions of the statute defining aggravated assault, the appellant being a minor, if sound which we question (Hand v. State, not yet reported) would not avail the appellant. The prosecution in Miller v. State
The conviction in the instant case involves the finding by the trial court that the appellant made an assault upon a female child calculated to inflict shame and disgrace. Whether that assault be an aggravated one or a simple assault, it comes within the statute because it constitutes a violation of the criminal laws of the State, and authorized the trial court to render the judgment from which this appeal was taken. Doubtless there are provisions of the juvenile law which ought to be changed. Whether it shall be done or not is a legislative and not a judicial question. The Delinquent Child Act has been upheld in many of its provisions, and while it stands unchanged the courts must enforce it as they find it. See Ex Parte McLoud,
The motion for rehearing is overruled.
Overruled.
Addendum
The record having been prefected, the dismissal heretofore entered is set aside.
The appellant was charged by complaint and information to be a delinquent chid, the specific facts upon which the allegation was based being that he had violated the laws of the State by making an assault with intent to rape upon a female named in the complaint and information. The evidence, while quite conflicting, is sufficient to show an aggravated assault, if not one of higher grade. A motion for continuance was made to secure the attendance of a witness. No bill of exceptions having been reserved complaining of the action of the court in overruling the motion for continuance, and disclosing the reasons upon which the action was based, the question is not in shape for review. Nelson v. State 1 Texas Crim. App., 44; and other cases listed in Branch's Annotated Texas Penal Code, p. 183, sec. 304. It is urged that the complaint should have alleged that the appellant was a negro, for the reason that a separate place of confinement is provided for negro delinquents. The contention is not meritorious. If the proper place of confinement should not be designated in the judgment, it could be corrected upon motion for a new trial or on appeal. The law, however, does not require that the complaint should state whether the accused is white or black. See Code of Criminal Procedure, title 17; Vernon's Criminal Statutes, vol. 2, p. 986; Acts 34th Legislature, 4th Called Session, chap. 26.
The motion for rehearing is granted, and the cause reinstated and considered on its merits; and no error appearing in the record the judgment is affirmed.
Affirmed. *207