Tippins v. State

• Decision Date: 12 November 1919
• Docket Number: (No. 5532.)
• Citation: 217 S.W. 380
• Parties: TIPPINS v. STATE.
• Court: Texas Court of Criminal Appeals

217 S.W. 380

TIPPINS v.STATE.

(No. 5532.)

Court of Criminal Appeals of Texas.

November 12, 1919.

On State's Motion for Rehearing, November 26, 1919.

On Appellant's Motion for Rehearing, January 14, 1920.

Appeal from Tarrant County Court; Hugh L. Small, Judge.

Bennie Tippins was convicted of being a delinquent child, and appeals.Affirmed.

Dee Estes and Gillespie & Prichard, all of Ft. Worth, for appellant.

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

MORROW, J.

The appellant was tried as a delinquent child, was found guilty by a jury, filed a motion for a new trial, which was overruled, and notice of appeal given.We fail to find in the record any judgment on the verdict of the jury, or any order of the court directing the disposition to be made of the appellant.In this state of the record, we think we are without jurisdiction to entertain the appeal.This is a criminal proceeding.Seearticle 1197,tit. 17, as amended in the Acts of the Thirty-Fifth Legislature, Fourth Called Session, c. 26.The requisite of a judgment sufficient to support an appeal will be found in Vernon's Texas Criminal Statutes, vol. 2, tit. 9,c. 3, p. 847.

Because of the absence of the final judgment, the appeal is dismissed.

On State's Motion for Rehearing.

The record having been perfected, the dismissal heretofore entered is set aside.

The appellant was charged by complaint and information to be a delinquent child; the specific facts upon which the allegation was based being that he had violated the laws of the state by making an assault with intent to rape upon a female named in the complaint and information.The evidence, while quite conflicting, is sufficient to show an aggravated assault, if not one of higher grade.A motion for continuance was made to secure the attendance of a witness.No bill of exceptions having been reserved complaining of the action of the court in overruling the motion for continuance, and disclosing the reasons upon which the action was based, the question is not in shape for review.Nelson v. State, 1 Tex. App. 44, and other cases listed in Branch's Annotated Texas Penal Code, p. 183, § 304.It is urged that the complaint should have alleged that the appellant was a negro, for the reason that a separate place of confinement is provided for negro delinquents.The contention is not meritorious.If the proper place of confinment should not be designated in the judgment, it could be corrected upon motion for a new trial or on appeal.The law, however, does not require that the complaint should state whether the accused is white or black.SeeCode of Criminal Procedure, tit. 17;Vernon's Criminal Statutes, vol. 2, p. 986;Acts 35th Legislature, 4th Called Session, c. 26.

The motion for rehearing is granted, and the cause reinstated and considered on its merits, and, no error appearing in the record, the judgment is affirmed.

On Appellant's Motion for Rehearing.

The contention that the facts would not bring the offense within any of the subdivisions of the statute defining aggravated assault, the appellant being a minor, if sound, which we question (Hand v. State, 217 S. W. ___, not yet officially reported), would not avail the appellant.The prosecution in Miller v. State, 67 Tex. Cr. R. 654, 150 S. W. 635, to which we are referred, was not one under the statute pertaining to juvenile delinquents.The Delinquent Child Act makes one subject to its terms...