Miller v. State

• Decision Date: 21 November 1917
• Docket Number: (No. 4628.)
• Citation: 200 S.W. 389
• Parties: MILLER v. STATE.
• Court: Texas Court of Criminal Appeals

200 S.W. 389

MILLER v. STATE.

(No. 4628.)

Court of Criminal Appeals of Texas.

November 21, 1917.

On Motion for Rehearing, January 16, 1918.

Appeal from Guadalupe County Court; J. B. Williams, Judge.

Le Roy Miller was convicted of being a juvenile delinquent, and he appeals. Reversed and remanded.

H. E. Short and Jas. Greenwood, both of Seguin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The information herein, which was based on a proper complaint, after the formal parts, which were regular, alleged that:

"On or about the 23d day of April, A. D. 1917, in the said county of Guadalupe and state of Texas, one Le Roy Miller, a male child under the age of 17 years, did then and there unlawfully by force, fraud, and threats break and enter a house occupied by Geo. J. Kempen, with the intent then and there to fraudulently take corporeal personal property belonging to said Geo. J. Kempen therein situated, without the consent of the said Geo. J. Kempen, and with the intent to appropriate it to the use and benefit of him, the said Le Roy Miller, and with the intent to deprive the said Geo. J. Kempen of the value thereof; said act constituting said child a delinquent child. And the said Le Roy Miller on or about the 23d day of April, A. D. 1917, in the said county and state aforesaid, then and there being a male child under the age of 17 years, did then and there fraudulently take from the possession of Leo Boyle one bicycle of the value of $15, the same being the corporeal personal property of the said Leo Boyle, without the consent of the said Leo Boyle, with the intent to deprive the said Leo Boyle of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Le Roy Miller; said act constituting said child a delinquent child. And the said Le Roy Miller on or about the 23d day of April, A. D. 1917, in the said county and state aforesaid, then and there being a male child under the age of 17 years, did then and there unlawfully by force, fraud, and threats break and enter a house occupied by Will Dibrell with the intent then and there to fraudulently take corporeal personal property belonging to said Will Dibrell, and situated in the said house without the consent of the said Will Dibrell, and with the intent to deprive the said Will Dibrell of the value thereof, and with the intent to appropriate the same to the use and benefit of him, the said Le Roy Miller; said act constituting said child a delinquent child. And E. Schweppe, county attorney for said county, presents to said court that the said Le Roy Miller, then and there being a male child under the age of 17 years, was then and there a child who violated the laws of the state of Texas, by committing petty thefts, and violated the city ordinances of the city of Seguin, Tex., by wandering about the streets after 9 o'clock p. m. during the nighttime, and the said Le Roy Miller was then and there a male child under the age of 17 years, who is incorrigible by failing and refusing to obey his parent and persons who had control over his person and acts, and failing and refusing to attend school, and by disobeying his teachers; said acts constituting said child a delinquent child."

The court did not err in overruling appellant's motion to quash this information on the grounds: (1) Because the juvenile laws are unintelligible and not operative, and in violation of article 6, P. C.; (2) because the information is duplicitous and charges felonies and misdemeanors; (3) and because the juvenile laws do not provide any intelligent mode of procedure whereby a delinquent child can be legally tried, and any trial thereunder is a farce. It has all the time, and in many cases, been held that said laws (articles 1195 to 1207b, inclusive, 2 Vernon's Crim. Stats.) are not void under article 6, P. C.

The proof shows appellant was only 10 or 11 years old when tried. Article 1197, C. C. P., defines who is a delinquent child, and what acts he commits make him such. The different counts in said information allege the commission of the several acts which made appellant a delinquent child. None of them charge him with a felony because of his age. Article 1195 requires the proceeding to be begun on complaint and information, which is as was done herein. The testimony of the state was ample to show he had committed the acts alleged, which authorized the jury to find him to be a delinquent.

The court in charging the jury told them the law provides that a "delinquent child may be committed to the state juvenile training school for an indeterminate period not exceeding five years"; and if they believed from the evidence beyond a reasonable doubt he had committed the acts alleged, or any of them, "you will find him a delinquent child and order him committed to" said school "for an indeterminate period not exceeding five years." The court was in error in telling the jury they could have him committed "not exceeding five years." The law is for a time not beyond a time when he shall arrive at 21 years of age. But appellant made no objection before the trial was concluded, and as the charge in this respect was in his favor, this charge presents no error.

The verdict was:

"We, the jury, find the defendant, Le Roy Miller, a delinquent, and have him committed to the juvenile training school for a term of five years."

Upon this verdict the court entered a judgment:

"That the defendant, Le Roy Miller, be and is hereby adjudged a delinquent child, and that he be placed in charge of the sheriff who shall forthwith commit him to the state industrial school for boys for a term of five years."

The appellant complains that the judgment entered did not conform to the verdict nor the law in that it was not for an indeterminate time. He concedes that while in some cases this court has reformed and affirmed a judgment, that it cannot do so in this instance. We think that this court can reform this judgment under the statute and decisions. Article 938, C. C. P., and decisions thereunder. The judgment herein will be reformed by this court so as to conform to the verdict in the particulars named.

The name of the school or institution at Gatesville has been changed from time to time by statute. There can be no doubt from the charge of the court, verdict, and judgment that the institution at Gatesville, providing for the training of male juveniles, was meant and intended so that while therein said institution is called the "juvenile training school" that would be no ground for a reversal of the judgment herein. Such calling it would undoubtedly be embraced within the said juvenile statute.

Appellant has only one bill of exception, which is to the effect that the court permitted this testimony by Wm. Neubauer, to be given over his objections, viz:

"I have had the defendant, Le Roy Miller, in jail several times for petty theft. He has been convicted for stealing several times. I do not remember when these cases were tried, or any of the facts connected with them. I do not know of my own knowledge that he ever stole anything."

Appellant's objections were that it was not the best evidence of these convictions, that the record thereof would be the best evidence, and that it was hearsay. This testimony did not purport to be, and was not, the contents of any record of a previous prosecution of appellant. It was not hearsay because the witness was sheriff and testified he knew as a fact that appellant had been in jail several times for petty theft. He also knew as a fact that he had been convicted of stealing several times, although he knew nothing personally of the thefts themselves. It has all the time, and in a great number of cases, been held that a defendant or any witness may be impeached by proving by him that he had been indicted or convicted for a felony or a misdemeanor involving moral turpitude; that for that purpose it was unnecessary to produce and introduce the judgment of conviction. 1 Branch's P. C. § 167, and cases cited. This principle and these authorities are applicable herein by analogy.

The clerk of this court will enter a judgment reforming the judgment of...