Ballard v. State, 5704.

• Decision Date: 14 January 1946
• Docket Number: No. 5704.,5704.
• Citation: 192 S.W.2d 329
• Parties: BALLARD v. STATE.
• Court: Texas Court of Appeals

Page 329

192 S.W.2d 329

BALLARD v. STATE.

No. 5704.

Court of Civil Appeals of Texas. Amarillo.

January 14, 1946.

Appeal from Crosby County Court; Warren Hames, Judge.

Proceeding under the Juvenile Delinquency Act by the State of Texas against Dudley Ray Ballard. Judgment finding defendant to be a delinquent child and committing him to the State's school for boys, and defendant appeals.

Reversed and remanded.

L. A. Wicks, of Ralls, for appellant.

E. A. Watson, County Atty., of Crosbyton, for appellee.

PITTS, Chief Justice.

This proceeding was instituted by petition under the provisions of the Juvenile Delinquency Act, Article 2338 — 1, Vernon's Annotated Civil Statutes, against Dudley Ray Ballard, alleging that he was a delinquent male child twelve years of age. Upon a hearing without a jury before the trial court a judgment was rendered finding Dudley Ray Ballard to be a delinquent child subject to the orders of the trial court until he becomes twenty-one years of age, unless earlier discharged by the said court, and the trial court ordered him committed to the State's school for boys at Gatesville, Tex., for an indeterminate period of time, not extending beyond the time when he shall reach the age of twenty-one years, subject to modification or revocation. The record discloses that the child was committed to the said institution.

The record further discloses that Dudley Ray Ballard was not represented by an attorney at the hearing but that he, joined by his father, W. P. Ballard, filed through an attorney of their choice his motion in due time for a new trial, which motion was by order of the trial court overruled, from which order an appeal was perfected to this court by appellants, Dudley Ray Ballard and his father.

Appellants complain, in effect, that the petition does not allege any violation of the Juvenile Delinquency Act; that the trial court erred in requiring or permitting the child, Dudley Ray Ballard, to testify against himself; that the trial court erred in hearing and considering testimony concerning offenses and misconduct of the child not alleged in the petition, and that the trial court's judgment is void because it does not state when the child will become twenty-one years of age, nor does it contain any other data from which it could be determined when the term of commitment would end.

The State, being represented by the County Attorney in the trial court, did not file a brief in this court or seek to uphold the judgment of the trial court.

It has been held by the Supreme Court that the Juvenile Delinquency Act does not undertake to try, convict, and punish a child for the commission of a crime. The Act does define the term "delinquent child", and the definition furnishes the basis for proceedings against such a child, and the issue to determine at the hearing in such a case is whether or not the juvenile charged is a "delinquent child" within the meaning of the Act. Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217; Steed v. State, Tex.Sup., 183 S.W.2d 458, 460. It has likewise been held that two elements must necessarily be present before a child can be declared a delinquent child, namely, the child must be within the age limit set forth in section 3 of the Act (in the case of a boy, he must be over ten and under seventeen years of age), and that the child must have committed one of the enumerated acts set forth in the said section. Steed v. State, supra.

Omitting the formal parts of the petition in the instant case, the child was charged of "being twelve years of age, according to the best knowledge and belief of the petitioner," and it further charged that the child "injured public property, to-wit: a sewer pipe belonging to the City of Ralls, Texas, in Crosby County."

"A full and correct statement of all the facts given in evidence and of all the evidence adduced on the trial," approved by the County Attorney, appellants' attorney, and the trial judge, nowhere gives the child's age or makes any reference to its age or the date of its birth. The trial court's judgment recites in part:

"On this 24th day of October, 1945, came on to be heard before the Honorable Warren Hames, Co Court of Crosby County, Texas, sitting as a Juvenile Court in said County, the petition filed by the Roy E. Hillin, Sheriff of said County, alleging certain acts on the part of one Dudley Ray Ballard tending to constitute the said Dudley Ray Ballard delinquent child. And it appearing to the Court that all proper persons have had due notice as provided by law in such cases. And the court now having jurisdiction of the subject matter and of the parties proceeded with the hearing.

"The Court after hearing petition read and the evidence submitted finds that the Juvenile Dudley Ray Ballard is a delinquent child.

"It is therefore considered and adjudged by the court that the said Juvenile now comes under the jurisdiction of said court and shall continue under its care, guidance, and control, until he becomes 21 years of age, * * *."

But nowhere does the said judgment recite the child's age or the date of its birth, or make any reference to either.

In the case of Steed v. State, supra, two boys were being tried and the Supreme Court said: "The judgment is uncertain and indefinite as to when the minors should be discharged from the State Juvenile Training School for Boys at Gatesville, in that it does not state the dates of their twenty-first birthdays. Nor does it contain any other data from which it could be determined when the term of their commitment would end. It would serve no useful purpose to direct the trial court to correct this error in the judgment as provided for in Rule 434, because there was no testimony, as reflected by this record, introduced before the trial court from which such information could be ascertained. The law requires that: `A judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated.' 25 Tex.Jur., pp. 456, 457, § 84; Tex.Jur.Supp.1939, p. 641, § 84. It therefore appears that the foregoing quoted provisions of the law have not been complied with."

The case was reversed for further proceedings by the trial court. The record in the instant case reflects the same lack of basic information...