Hogue v. State

• Decision Date: 31 March 1920
• Docket Number: (No. 5754.)
• Citation: 220 S.W. 96
• Parties: HOGUE v. STATE.
• Court: Texas Court of Criminal Appeals

220 S.W. 96

HOGUE v. STATE.

(No. 5754.)

Court of Criminal Appeals of Texas.

March 31, 1920.

Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.

Edith Hogue was convicted of being a delinquent child, and she appeals. Judgment reversed, and cause remanded.

Baskett & De Lee, of Dallas, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The appellant was prosecuted as a delinquent child, and is under an indeterminate sentence confining her to the Girls' Training School for a period of three years.

The sufficiency of the information is challenged. It charges that she was a delinquent child in that: (a) She was an incorrigible child; (b) that she associated with vicious and immoral persons, naming them; (c) that she habitually wandered about the streets of the city of Dallas in the night-time without being on any business or occupation; (d) that she was guilty of immoral conduct in a public place by having unlawful sexual intercourse with a person, naming him, in a public place, to wit, in an alley near the City Park in the city of Dallas. Subdivisions (a), (c), and (d) were submitted, and a general verdict rendered. This verdict would be referred to any charge correctly pleaded and submitted to the jury, provided there was sufficient evidence supporting it.

The sufficiency of the evidence being questioned, we will give some attention to the criticisms of the information contained in the motion to quash. The underlying purpose of the statutes defining delinquent children and creating juvenile courts is the protection and reformation of children. The courts have treated them as beneficial, and entitled to favorable construction. Lindsay v. Lindsay, 257 Ill. 328, 100 N. E. 892, 45 L. R. A. (N. S.) 908, Ann. Cas. 1914A, 1222; Ruling Case Law, vol. 14, p. 278. The consequence of conviction of delinquency is to deprive the delinquent of liberty, and to withdraw him from the paternal care, and in our state both by judicial construction and expressed legislative declaration the prosecutions are required to follow the procedure in criminal cases. Ex parte McLoud, 200 S. W. 394; Ex parte Pruitt, 200 S. W. 392; Ex parte Ellis, 200 S. W. 840; Miller v. State, 200 S. W. 389; McLaren v. State, 199 S. W. 811; Acts 35th Leg. 4th Called Sess. c. 26. The law requires the prosecution to begin by complaint and information. Some light is thrown upon the requisites of the pleading in these proceedings by the statutes and court decisions upon the subject of vagrancy. Vagrancy is an offense consisting of certain acts or omissions which are named in the statute. Cyc. vol. 39, p. 1109. Our statute on the subject (Penal Code, art. 634) names a number of classes of persons who by their occupation or conduct are classed as coming within the purview of the law denouncing the offense of vagrancy. In charging the offense, however, it is not sufficient to allege that one is a vagrant, but the facts which bring him within one of the classes, his acts or omissions, must be named in the pleading. Walton v. State, 12 Tex. App. 117; Ellis v. State, 65 Tex. Cr. R. 480, 145 S. W. 339; Cyc. vol. 39, p. 1111.

Our statute on the subject of delinquent children defines a delinquent child as follows:

"The words `delinquent child' shall include any male child under seventeen years of age, or any female child under eighteen years of age, who violates any law of this state, or who is incorrigible, or who knowingly associates with thieves, vicious or immoral persons, or who knowingly visits a house of ill repute, or who knowingly patronizes or visits any place where any gambling device is or shall be operated, or who patronizes any saloon or place where any intoxicating liquors are sold, or who habitually wanders about the streets in the nighttime without being on any business or occupation, or who habitually wanders about any railroad yard or tracks, or who habitually jumps on or off of any moving train, or who enters any car or engine without lawful authority, or who is guilty of immoral conduct in any public place. Any such child committing any of the acts herein mentioned shall be considered a `delinquent child,' and shall be proceeded against as such in the manner hereinafter provided and as otherwise so provided by law so as to effect the object of this law." Acts 35th Leg. 4th Called Sess. c. 26.

The averments in the information covering the actions which were submitted to the jury were, we think, sufficient, with the exception of that which charged that the appellant was incorrigible. The particularity required, we think, is not greater than that which obtains in a charge of vagrancy, concerning which see Ex parte Strittmatter, 58 Tex. Cr. R. 156, 124 S. W. 906, 137 Am. St....