Appellant again asserts that we were in error in our original opinion wherein we held that Tony Ramirez, a child 15 years of age, was a proper witness herein. It will be admitted that such child gave damaging testimony against appellant, but appellant contends that under Acts of the 48th Legislature, page 313, et seq., this child was not a legal witness.
The Constitution of the State of Texas, Art. 1, Section 5, provides: "* * * 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." *Page 559
Under this provision, doubtless on account of this court's opinion in the case of Freasier v. State, 84 S.W. 360, Art. 30, P. C. was amended so as to provide for the punishment of any child of any age for the crime of perjury, provided it was shown to have had sufficient discretion to understand the nature and obligation of an oath.
There seems to be a contradiction between some of the provisions of this act of the 48th Legislature, and we are given some trouble in harmonizing them. For instance it is said on page 316, under Section 13 (3):
"No adjudication upon the status of any child in the jurisdiction of the court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shallany child be deemed a criminal by reason of such adjudication,nor shall such adjudication be deemed a conviction, nor shallany child be charged with or convicted of a crime in anycourt."
We recognize the fact that the act of the 48th Legislature, p. 313, had as its purpose the changing of a jurisdiction over juvenile delinquents, from criminal courts, and lodging the same in the civil courts of this State. We again are familiar with the case of Dendy v. Wilson, 179 S.W.2d 269, in which the Supreme Court upheld the validity of that statutory enactment, included therein being the underlined phrase above. We also find mentioned therein the doctrine laid down in Freasier v. State, 84 S.W.2d 360, and a recognition of Art. 30, Penal Code, as fixing a punishment for the offense of perjury independent of age, and based merely upon a showing of discretion upon the part of a child, and find no effort made in such act of the 48th Legislature to repeal this special statute.
Under our Constitution, Art. 1, Section 5, no person can testify in any of our courts unless subject to the pains and penalties of perjury. Therefore a child who could never be "convicted of a crime in any court" is not amenable to the pains and penalties of perjury, and therefore could not testify in any court. If such were true, then the result would be to deny to such child the equal protection of the laws, as guaranteed in the 14th Amendment to the Federal Constitution. If the child were hurt in an accident, with no witness save the child, it would have no protection under the law. Again, on the criminal side, in cases of rape under the age of consent, the female could not be heard to testify, she being not punishable under the law of perjury. *Page 560
We think the legislature had not the intention nor the power to say that no child "shall be charged with or convicted of any crime in any court."
Had they added thereto the phrase "except for perjury," then this court would have no quarrel with such provision, but standing alone, it would deprive such child of its right to be heard in any court in redress of its wrongs.
We think the phrase: "nor shall any child be charged with or convicted of a crime in any court," is violative of the Constitution of Texas and also our Federal Constitution. That same did not repeal Art. 30, P. C., and that the testimony of this juvenile witness was properly received.
So believing, the motion for a rehearing is overruled.