Head v. State, 22954.

• Decision Date: 15 November 1944
• Docket Number: No. 22954.,22954.
• Citation: 183 S.W.2d 570
• Parties: HEAD v. STATE.
• Court: Texas Court of Criminal Appeals

183 S.W.2d 570

HEAD v. STATE.

No. 22954.

Court of Criminal Appeals of Texas.

November 15, 1944.

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Harris County; Langston G. King, Judge.

Doreece Head was convicted of sodomy, and he appeals.

Affirmed.

J. E. Winfree, of Houston, for appellant.

A. C. Winborn, Dist. Atty., and E. T. Branch, Asst. Dist. Atty., both of Houston, and Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

This is a conviction for sodomy under the provisions of Article 524, P.C., as amended by Chapter 112, Acts of the Regular Session of the Forty-eighth Legislature, in 1943, Vernon's Ann.P.C. art. 524; the punishment, eight years in the penitentiary.

Appellant's guilt was shown by the testimony of two boys. One, who was the prosecuting witness named in the indictment, was eleven years of age; the other boy, eight years of age. Appellant objected to the testimony of said witnesses, claiming they were incompetent to testify, in that, under the terms of the Juvenile Delinquency Act—being Chap. 204, Acts of the Regular Session of the Forty-eighth Legislature in 1943 and appearing as Art. 2338—1, Vernon's Annotated Civil Statutes—they could not be convicted of the crime of perjury in this State and, therefore, oaths and affirmations taken by them would not be subject to the pains and penalties of perjury, as required by Art. 1, sec. 5, of the Constitution of this State, Vernon's Ann. St. This is the sole question presented for review.

Since the Juvenile Delinquency Act does not apply to an eight-year-old boy, the objection to the testimony of that witness was properly overruled for that reason.

The question as to the competency of the eleven-year-old boy to testify as a witness in the case is properly before us.

The exact question here presented was before this Court and was decided adversely to appellant's contention, in Santillian v. State, 182 S.W.2d 812, not yet reported [in State reports]. In that case, we held that the Juvenile Delinquency Act, in so far as it provided that children within the meaning thereof could not be convicted of the crime of perjury in this State, or operated as a repeal of Art. 30, P.C., was in violation of the due process and equal protection clauses of our State and Federal Constitutions, in that—under the provisions of Art. 1, sec. 5, of our State Constitution— such child would be precluded from testifying in the courts of this State in any cause or action. Freasier v. State, Tex. Crim.App., 84 S.W. 360.

Appellant insists, as was insisted in the Santillian case, that our holding is in conflict with that of the Supreme Court of this State in the case of Dendy v. Wilson, 179 S.W.2d 269, 151 A.L.R. 1217, in which the validity of the Juvenile Delinquency Act was sustained.

The Supreme Court's jurisdiction being limited to civil cases, it follows that the...