The State in its motion for rehearing refers us to McCallan's case, 174 S.W. Rep., 1051, wherein certain statutory provisions touching the juvenile laws of the State were commented upon. The construction of the article of the statute construed in this case, article 1195, C.C.P., was not involved in the McCallan case for the reason that in that case the question before the court was the right of a juvenile charged with a misdemeanor, while article 1195, supra, touches only the right of a juvenile charged with a felony.
The contention is made that the Act of 1907, sec. 9, which is article 2200 of the Revised Civil Statutes, is in force and unrepealed and the provisions therein contained providing that a transfer of a case of a juvenile charged with a felony to the Juvenile Court is within the discretion of the trial judge, control the disposition of the appellant whose *Page 455 rights accrued under the Act of 1913, chapter 112, section 1, can not be sustained. The Act of 1913 amended a provision of the Code of Criminal Procedure passed in 1909 which, with reference to the discretion of the judge in juvenile cases, was in substance the same as the provision of article 2200, supra, and in writing the amendment repealed article 1145 containing such discretion and substituted therefor the mandatory language quoted in the original opinion. Article 1145, supra, is construed in Ragsdale, 61 Tex.Crim. Rep., and expressly repealed by the Act of 1913, chapter 112, by completely rewriting article 1145 and substituting therefor article 1195 as quoted in the original opinion.
Article 5229 of the Revised Civil Statutes as amended by the Thirty-third Legislature is not in conflict with article 1195, supra, as construed in the original opinion. That Act, article 5229, in substance provides that a boy under seventeen years of age convicted of a felony shall be sent to the training school for boys instead of to the penitentiary. A boy under seventeen years of age charged with a felony, may, if he so elect, rely upon his plea of not guilty and stand his trial on the charge of felony, taking the chances of conviction or acquittal; or he may, if he so elect, file his plea setting up the fact that he is under seventeen years of age, which, when established by proof, will require the court to dismiss the felony charge. If he elect to be tried for a felony and not as a juvenile, article 5229 as amended provides his place of confinement upon conviction.
The legislative policy disclosed in article 1195, as well as in article 5229, supra, is to prohibit the sending of boys under seventeen years of age to the State penitentiary and to provide a method whereby they may by reason of their youth avoid the consequences of conviction for a felony. This is illustrated in Arrendell v. State, 60 Tex.Crim. Rep., wherein it is held that the exemption from prosecution for a felony by reason of youth refers to the time of the trial and when the boy is over thirteen years old — not to the time the offense is committed.
The argument made that the policy of the law is unsound is not available to control the construction of the statute contrary to the expressed intent of the Legislature. From the suggestion that there is much in the juvenile laws that might be improved by amendment, we do not dissent. Until so amended we can only apply to them, as best we may, the settled rules of construction.
Following these rules we are constrained to overrule the State's motion for rehearing.
Overruled.