Santillian v. State, 22773.

• Decision Date: 14 June 1944
• Docket Number: No. 22773.,22773.
• Citation: 182 S.W.2d 812
• Parties: SANTILLIAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 812

182 S.W.2d 812

SANTILLIAN v. STATE.

No. 22773.

Court of Criminal Appeals of Texas.

June 14, 1944.

Rehearing Denied October 25, 1944.

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

Frank B. Santillian was convicted of selling marijuana, and he appeals.

Affirmed.

C. E. Smith, of Houston, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The conviction was for the sale of marijuana with a punishment of five years in the state penitentiary.

The indictment alleges that appellant sold marijuana, a narcotic drug, to Tony Ramirez, who became the chief prosecuting witness in the case. This witness was fifteen years of age and his testimony appears to be necessary to sustain the conviction.

It is contended that, under Chapter 204, Acts of the 48th Legislature, Art. 2338—1, Vernon's Ann.Civ.St., known as the Delinquent Child Act, and by virtue of Section 5 of Article 1, Constitution of Texas, Vernon's Ann.St., Ramirez was not qualified to give evidence. Section 5 of Article 1 of the Constitution reads as follows: "No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury."

If the Act referred to is subject to the construction that boys over the age of ten and under the age of seventeen years and girls over the age of ten and under the age of eighteen years cannot be punished for crime, then it would naturally follow that they do not take an oath "subject to the pains and penalties of perjury." Freasier v. State, Tex.Cr.App., 84 S.W. 360. In that event, the contention would have to be sustained. Consequently, a construction of the Act, so far as the question before us is concerned, will be necessary to a proper disposition of the case.

The Delinquent Child Act, as passed by the 48th Legislature, had as its purpose a change in the method of handling delinquent children, from criminal procedure to civil procedure. It establishes a juvenile court in every county and provides procedure for the trial of delinquent children in such courts, with authority to appoint guardians for them. It specifically repeals Articles 1083 to 1093, inclusive, of the Code of Criminal Procedure, and Articles 2329 and 2338, Revised Civil Statutes of 1925, together with "all laws and parts of laws in conflict herewith * * *." Section 24. It sets up a new procedure in which all appeals are to the Court of Civil Appeals and the Supreme Court instead of to the Court of Criminal Appeals.

There is no attack on the constitutionality of any phase of this Act in the instant case and we disclaim any intention to consider that question.

The opinion in Re Dendy et al., 175 S.W.2d 297, by Chief Justice Pitts of the Court of Civil Appeals in Amarillo, is relied upon in appellant's brief, which seeks such a construction as would determine that (a) the provisions of the Delinquent Child Act are not for punishment but for custodial protection of the child for its own good and for the good of society generally; (b) the procedure takes out of the Code of Criminal Procedure and Penal Code any handling of juveniles and therefore a juvenile committing perjury is not amenable to or subject to any criminal prosecution and consequently not a qualified witness under Section 5 of Article 1 of the Constitution.

It will be conceded that one who is not amenable to punishment for perjury is not a competent witness and cannot be made so by act of the legislature. If we are to give the construction to the Act in question for which appellant contends, this case must be reversed, with the result that boys over ten and under seventeen years of age and girls over ten and under eighteen years of age cannot legally give evidence in any kind or character of court procedure. The effect of such a holding would do no less than utterly destroy our system of law enforcement. It would result in a virtual license to prey upon minors of that age who would be helpless to come into court and defend their rights, or those of the public, in the enforcement of the criminal laws. The officers would be helpless in the enforcement of law relating to many of the most heinous crimes (see Fields v. State, Tex.Cr.App., 182 S.W.2d 815, this day decided). Children of the juvenile age, as thus defined, could not protect their civil rights in the courts and it appears that a law which may be so construed would be in contravention of Section 1, Amendment Article 14, of the Constitution of the United States, which forbids any State from passing a law which will deny to any person within its jurisdiction the equal protection of the laws. One who cannot testify in his own behalf is not equally protected in law with those who can. That the Act did not intend to repeal the penal laws relating to the age of children, under discussion, is evidenced by the definition of "delinquent child" under Section 3 of the Act which, among other things, includes those "who violates any penal law of this state of the grade of felony"; who violate any penal code of the grade of misdemeanor where the punishment may be by confinement in jail; who habitually violate other penal laws and ordinances, etc.

Appellant has forcefully presented an argument in favor of his contention based upon the further proposition that, under the holding of the Court of Civil Appeals in the Dendy case, one is not punished who is subject to any of the provisions of the act under discussion, even though he be committed to some institution, public or private, and confined there by order of the court until he is twenty-one years of age. The question of whether or not such confinement is punishment as contemplated by the Constitution and laws of our State was discussed in Williams v. State, 88 Tex.Cr.R 214, 225 S.W. 173, 175, under the former juvenile law, from which we quote a discussion of the same subject, as follows: "This would not relieve prosecutrix of conviction for perjury under an indictment charging that offense, unless she did in some manner claim the exemption under the delinquent child act. If that was set up, then the court would dismiss the case of perjury and try her under the Acts of the Fourth Called Session of the Legislature, supra. It would be as much a violation of the law in one case as in the other. The facts would be the same and the perjury the same, but under the delinquent child act she would be entitled to be sent to the reformatory instead of the penitentiary. It changed the manner of enforcing the law, but does not change the crime nor the necessary facts. It changes the manner of trying it and the manner of charging it, but the offense would be the same so far as the act of the child in testifying is concerned. It does not relieve her of punishment, but changes the place of punishment and the mode of trial."

And so we are reminded: "I cannot say the crow is...