In re Fisher, 5658.

• Citation: 184 S.W.2d 519
• Decision Date: 11 December 1944
• Docket Number: No. 5658.,5658.
• Parties: In re FISHER.
• Court: Court of Appeals of Texas

184 S.W.2d 519

In re FISHER.

No. 5658.

Court of Civil Appeals of Texas. Amarillo.

December 11, 1944.

Appeal from Juvenile Court, Donley County; R. Y. King, Judge.

Proceeding in the matter of J. A. Fisher, Jr., a delinquent child. From a judgment declaring J. A. Fisher, Jr., to be a delinquent child and committing him to State School for Boys at Gatesville for an indefinite period, not to extend beyond his twenty-first birthday, J. A. Fisher, Jr., joined by his parents, appeals.

Reversed and remanded.

W. T. Link, of Clarendon, for appellant.

A. T. Cole, Co. Atty., of Clarendon, for appellee.

PITTS, Chief Justice.

This proceeding was filed by Truett Behrens on June 15, 1944, in the County Court of Donley County against J. A. Fisher, Jr., under the provisions of article 2338—1, Vernon's Annotated Civil Statutes, Acts of the Forty-eighth Legislature, 1943, page 313, chapter 204, known as the Juvenile Delinquency Act. Upon a hearing without a jury in the said court sitting as a juvenile court, judgment was rendered on September 9, 1944, declaring J. A. Fisher, Jr., to be a delinquent child and committing him to the State School for Boys at Gatesville for an indefinite period, not to extend beyond his twenty-first birthday. On September 11, 1944, J. A. Fisher, Jr., joined by his parents, J. A. Fisher, Sr., and wife, filed a motion for a new trial, which motion was on the same day overruled by judgment of the court, from which judgment J. A. Fisher, Jr., joined by his parents, perfected an appeal to this court and they shall be hereafter referred to as appellants.

The record discloses that appellants were not represented by counsel during the trial but they employed an attorney of their choice immediately thereafter. Apparently the County Attorney of Donley County represented the petitioner in the trial court but nothing has been filed in this court resisting appellants' contentions and seeking to uphold the judgment of the trial court.

Appellants complain in four points of error to the effect that the petition does not allege any violation of the Juvenile Delinquency Act; that proper notice or summons was not served upon the parents of the child prior to the hearing; that J. A. Fisher, Jr., was not convicted of the charge alleged in the petition but was found guilty of other acts not alleged in the petition; and that J. A. Fisher, Jr., was compelled by the trial court to give evidence against himself in violation of the law.

We overrule appellants' first point of error. The record discloses that petitioner, Truett Behrens, a Donley County deputy sheriff, filed the petition alleging the name, age and residence of the child, the name and residence of the child's father, and further alleged that the said J. A. Fisher, Jr., did on or about June 1, 1944, without lawful authority and without any authority, with the intent to commit theft, break and enter into the gin house and building known as the Fitzgerald Gin, owned by Memphis Cotton Oil Company, controlled and operated by Fitzgerald, and located in Donley County, Texas. Section 7 of the Juvenile Delinquency Act provides for the filing in such cases of "a petition alleging briefly the facts which bring said child within the provisions of this act." In the case of Dendy et al. v. Wilson, 179 S.W.2d 269, 277, 151 A.L.R.1217, the Supreme Court said: "To come under the provisions of this Act, a reasonable and definite charge must be filed against the minor." Under these authorities, we believe the allegations of the petition in the instant case are sufficient.

With reference to appellants' complaint about the insufficiency of the summons served on the child's father, it appears from the record that the trial court conducted the hearing in an informal manner and adjourned the hearing from time to time, as authorized by section 13 of the Juvenile Delinquency Act; it further appears that the original hearing began on June 21, 1944, and was continued from time to time by agreement of the parties until July 5, 1944; it likewise appears that both parents of the child, J. A. Fisher, Sr., and wife, were notified orally prior to the first hearing of the complaint and of the hearing to be had on June 21, 1944, and that both of them attended the hearings at various times and heard the evidence in the case; it further appears that on September 8, 1944, one day before the final judgment was entered by the trial court, a summons was served upon J. A. Fisher, Sr., advising him of the further hearing to be had the next day and directing him to bring the said child into court to attend the said hearing and that his wife, the child's mother, and the child attended the said hearing on the next day, September 9, 1944, when the parties announced ready for trial and at the conclusion of which a final judgment was rendered by the trial court.

Section 8 of the Juvenile Delinquency Act requires the service of notice or summons upon the child's parents or its guardian unless they "shall voluntarily appear." In the instant case the record reveals that the child's parents were "notified orally," that they attended several hearings and agreed to a postponement of further hearings from time to time. Under the record we believe the child's parents had sufficient notice of the proceedings to comply with the law and appellants' second point is therefore overruled.

Appellants complain in their third point that the findings of the trial court do not support the judgment of the court declaring the child to be a delinquent upon the acts alleged in the petition but the judgment declares it to be a delinquent child by reason of other and different acts not alleged in the petition nor elsewhere in the record.

There is no statement of facts in the record but at the request of appellants the trial court filed findings of fact and conclusions of law and states the facts to be "all the facts heard upon the trial of the above entitled and numbered cause." Several witnesses testified in detail during the several hearings and there is a lengthy findings of fact filed which, in effect, is as follows, to-wit: At the hearing beginning on June 1, 1944, the evidence reveals that upon investigations made by Guy Wright, Sheriff of Donley County, it was discovered that the Fitzgerald Gin, the Clarendon Gin, and the Bert Smith Gin, all located in Clarendon, Donley County, had been broken into early in June, 1944 and some character of tools had been stolen from each gin and light globes had been broken and other property damaged in each gin; that about the same time the Simpson Feed Store was burglarized and certain property stolen therefrom; that on Sunday, June 18, 1944, subsequent to the time the Clarendon Gin had been burglarized, the operator of the said gin found J. A. Fisher, Jr., and another boy in his gin and called the sheriff, who took them into custody and held them until they were ordered released by the trial judge;...