The uncontradicted and unimpeached testimony in this case reveals one of the most atrocious and cruel murders that is recorded in criminal records. The majority opinion fails to state the facts. I think it is important and necessary *Page 456 that this be done, and I will here succinctly state them. They were established by the uncontradicted testimony of disinterested witnesses and by the written confession of appellant himself.
The deceased, R.F. (Frank) McLaren, lived in the country several miles from Taylor. Appellant, his son, J.C. McLaren, lived with him. In the early part of the night of November 27, 1916, deceased went from his home to Taylor in his automobile to an Odd Fellows lodge meeting. In going he went by and picked up and took with him four of his neighbors. They left Taylor a little after 11 o'clock that night returning home. He first took his neighbors to their homes, and after dropping the last one, started to his home alone.
Appellant was born October 10, 1900, and was, therefore, on said night sixteen years, one month and seventeen days old — in his seventeenth year. He had been intending and planning for some time to murder his father, deceased. He knew his father had that night gone to said lodge meeting and that he would return home on a certain route. He induced Harry McBryde, a young man twenty-two years old, to go with him and assist him kill his father. They took with them, or McBryde did, a gun barrel with which to kill him. They lay in wait for him near the road on which they knew he would return. About or near midnight deceased reached the point where they lay in wait and discovered them. He stopped and invited them in his automobile to ride with him. They got in the automobile on the back seat. He started up and after going for a while McBryde from behind struck him a blow on the head which crushed his skull and stunned him if it did not kill him. McBryde continued to strike him repeated blows, crushing his skull most horribly. Of course when the first blow was struck deceased lost control of his machine and it left the road. Appellant himself got over on the front seat, took control of the steering wheel and ran the machine back into the road. The blood from his father ran and was running out on the front seat taken by appellant. Indeed, his pants and his clothes were saturated therewith. Appellant then ran the machine with his murdered father by his side to a bridge and he and McBryde ran the machine off of the bridge with his father in it, turning it upside down. They then set fire to the machine and his father, as he says, in order to make it appear that his father accidentally ran off the bridge and his machine caught fire. They then took the gun barrel and hid it. They washed the blood off their hands and appellant went to a certain barn, removed all of his bloody clothing and hid them. Later he went back, got the gun barrel from where they had hid it that night, took it elsewhere and threw it in a water hole, where it sunk in the mud. It was afterwards found and identified where appellant said he had thrown it.
The machine was practically burned up, and in the burning the body of deceased was largely consumed by the fire. An hour or two after they killed deceased several persons going from Taylor on said road *Page 457 found at said bridge the said burned car and burned body of deceased. They gave the alarm and later the neighbors and officers reached the body. Appellant and McBryde so far deceived them, by running the car off the bridge and burning it and deceased's body, that they thought deceased had accidentally run off the bridge, his car caught fire and was consumed, consuming his body. They did not at the time, it seems, suspect deceased had been murdered. No especial examination was made of his skull at that time. He was buried without ascertaining that his head had been crushed. Later developments aroused suspicion, his body was disinterred, his skull examined by physicians and it was then seen and learned that his skull had been crushed — beaten into a pulp and that said gun barrel was the instrument used in doing this by appellant and McBryde.
The case was called for trial January 25, 1917. Just prior thereto appellant filed his affidavit to the effect that he was a juvenile under the age of seventeen years. The affidavit was in accordance with our juvenile statute. The court on that date heard evidence of his age and found it a fact that his age was as stated above. In his motion and affidavit he moved that the cause against him be transferred to the Juvenile Court and that he be tried as a juvenile and not tried for the felony offense of the murder of his father. The court held that under the juvenile statute and the decisions of this court thereunder he had the discretion not to transfer the case to the juvenile docket and try him as a juvenile but to proceed to trial as any other like cases of felony in his court, and thereupon he duly so ordered and had such order entered property in the minutes of the court as follows:
"It is therefore ordered, adjudged and decreed by the court, that said motion be, and the same is hereby overruled, and the court in the exercise of its discretion and after hearing and considering the testimony as to the age of the defendant, and as to the character of the defendant, and the circumstances under which the crime charged against him was committed, here now orders and directs that the best interests of said defendant and of society require that this cause be tried and disposed of by this court in accordance with the law governing the trial of causes in this court, and that this cause be set for trial and disposed of in due order as are other felony cases of its grade."
On February 24, 1915, in McCallan v. State, 76 Tex. Crim. 353, this court, after the most careful investigation and consideration, expressly held that the Act of 1913, page 214, amending article 1195, Code of Criminal Procedure, of the juvenile statute was not mandatory requiring the district judge to peremptorily dismiss a felony charge against a male under seventeen years of age and try him as a juvenile, but that notwithstanding said amended article stated, "said judge shall dismiss, etc.," the Legislature intended to still leave it discretionary to the judge whether or not he should dismiss such prosecution. The Legislature was then in session at its regular term. The next Legislature *Page 458 convened in regular session in January, 1917. There were also special sessions of the Legislature after the regular session beginning in January, 1913, and there were other special sessions of the Legislature after the regular session in 1917. The executive and the Legislature acquiesced in the said construction of said statute by this court, and the Legislature in no way amended said article of the juvenile statute nor did the executive recommend it, to show that this court's construction of said article was other than as intended by the Legislature as held by this court. Again this court in Townser v. State,79 Tex. Crim. 4, 182 S.W. Rep., 1105, in a felony case expressly adhered to its holding in the McCallan case and cited that case on the point. This decision was rendered February 2, 1916. Neither the executive recommended nor the Legislature thereafter amended said article to show that this court's construction of the Act of 1913 was wrong, but acquiesced, by not enacting otherwise, in said construction given by this court. Again in Davis v. State, 79 Tex.Crim. Rep., 188 S.W. Rep., 990, in a felony case, this court expressly adhered to the decision in the McCallan case and cited it with approval. This decision was rendered October 18, 1916, and notwithstanding these several decisions of this court construing said Act of 1913, the Legislature in 1917 still did not change the said Act or amend it so as to show that the construction of this court was wrong, but by not doing so again impliedly acquiesced in the construction of said article by this court. It looks like, therefore, that the question should be regarded as settled and the law upheld and not now construed so as to permit appellant herein to escape the just punishment of, as stated, his most atrocious and cruel murder of his father. The Legislature never intended that such crimes should escape punishment. On the contrary, the Legislature intended to still leave the discretion with the district judge, as was held in the McCallan, Townser and Davis cases. The undisputed facts in this case reveal such another atrocious and cruel crime which the Legislature intended should not escape punishment as was given in illustration in the said McCallan case.
While it adds to the length of this opinion, still I think it of sufficient importance to here copy what was held by this court in said McCallan Townser and Davis cases. In the McCallan case it was held: "Prior to 1889 all persons convicted of crime, even under the age of sixteen years, were liable to the same punishment as those above said age. If of felony, they had to be confined in the penitentiary; if of a misdemeanor, they were compelled to pay a fine and suffer a jail imprisonment, as might be imposed under the law. But the Act of April 2, 1889, page 95, section 12, as amended in 1895, page 94, and incorporated in our Code of Criminal Procedure of 1895 as articles 1145-1146, it was for the first time required that when a male person under sixteen years of age was convicted of a felony and his punishment assessed at imprisonment of five years or less that he should not be confined in the *Page 459 penitentiary, but in the reformatory established and located at Gatesville, Texas. That Act made no provision about a misdemeanor conviction.
"The first Act about juveniles was enacted by the Legislature April 5, 1907, page 137, in ten sections, defining and prescribing the procedure for the trial of a `delinquent child.' Said articles 1145-1146 of the Code of Criminal Procedure were amended by the Act of March 17, 1909, page 100. The very next Act of the same Legislature amended section 9 of the 1907 delinquent child Act. And the next Act, page 103, changed the name of the Gatesville institution and prescribed regulations therefor.
"The revisers of 1910-1911 bodily copied the said Act of 1907 in the Code of Criminal Procedure as articles 1197 to 1206, inclusive, and copied said articles 1145-1146, as amended in 1909, in the same chapter, as articles 1195-1196. At the same time they also embodied in the Revised Civil Statutes said Act of 1907 as articles 2191 to 2201, inclusive, and the Legislature adopted both as thus contained. There is no difference between these several provisions in the Revised Statutes and those copied in the procedure above noted. The Legislature in 1909, page 103, amended the Revised Statutes, regulating the control of said Gatesville institution and changed the name of it. This Act was embraced in the Revised Civil Statutes of 1911 under articles 5221 to 5234, inclusive.
"Again, on April 2, 1913, page 214, the Legislature amended said articles 1195 to 1207 of the Code of Criminal Procedure, in lieu of those articles as they appeared in the code entirely, making changes therein except article 1205, which was expressly repealed. And on August 16, 1913, at the special session of the same Legislature the said article of the Revised Statutes, 5221 to 5234, were amended and re-enacted with changes, and article 5234a was added thereto. Evidently it was the intention of the Legislature that all these laws were to be construed together as one whole. The said sections 9 and 10 of the Act of 1907 embodied as articles 2199-2200 of the Revised Civil Statutes, have neither been amended expressly nor repealed expressly. Taking the various enactments, we conclude that it was the intention of the Legislature not to repeal said articles 2199-2200. It is a universal rule that repeals by implication are not favored.
"Said article 1195, Code of Criminal Procedure, as enacted in 1909, page 100, and embraced in the Revised Code of Criminal Procedure of 1911, provided that when a male juvenile under sixteen years of age was indicted for a felony, he, or anyone for him, might file a sworn statement setting forth that he was under the age of sixteen. Thereupon, the judge was required to hear the evidence and if satisfied that the defendant was less than sixteen years of age, `said judge shall have authority to order such prosecution dismissed,' etc. This article, as amended by the Act of April 2, 1913, page 214, was changed so that *Page 460 if the male was under seventeen years of age he, or anyone for him, could file such sworn statement and the judge `should hear evidence, and if satisfied that he was under seventeen years of age, `said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent,' etc. The language in this latter article would ordinarily be construed as mandatory or imperative; but, as stated, the Legislature left in full force said article 2200, Revised Statutes, which expressly provides that whenever it shall appear to the District Court that any person prosecuted in such court for a felony is under sixteen years of age `such court shall have authority to order such prosecution dismissed and to order such child to be committed to the Juvenile Court of the county . . . for such action and disposition as said juvenile court may think proper in the premises.' Again, by an Act of the same Legislature at its special session August 16, 1913, by the amendment of article 5220 of the Revised Civil Statutes, it was expressly enacted: `Hereafter all male persons under the age of seventeen years who shall be convicted of a felony or other delinquency in any court within this State, unless his sentence be suspended as provided by law, or otherwise disposed of, or unless by reason of the length of the term for which he is sentenced is required, under the law to be confined in the State penitentiary, shall be confined in the Texas Training School for Boys' (the said Gatesville institution). And said article 1195, as amended April 2, 1913, clearly contemplates that a mere juvenile under seventeen years of age may be legally indicted by the grand jury for any felony he may have committed. And it further contemplates clearly that if found guilty of a felony, his punishment may be assessed at more than five years, when the offense carries a greater punishment, for it provides that if he be found to be a delinquent and sentence be not suspended as provided by the laws of this State in cases of felony on first offense, then and only then, shall be committed to said Gatesville institution, clearly contemplating that if his penalty is fixed at greater than five years he shall be incarcerated in the penitentiary. Taking the whole legislation, we can not believe that the Legislature intended that a male person under seventeen years of age shall not under any circumstances be punished as a felon. Illustrations could be made which, it seems to us, would preclude such an idea. For instance, suppose that a male not quite seventeen years of age, and a female not quite eighteen years of age, should, together, with firearms, rob some girl under fifteen years of age. Then by force take her into some secluded place, and the woman just under eighteen years of age should hold the little child while the male just under seventeen years old should ravish her by force, and then, fearing the little girl had recognized them, and that they would be prosecuted for robbery and rape, they should then murder her. Thus committing three of the most horrible crimes known to our law or to civilization; and that this might be the case is no unreasonable supposition, for in Campbell v. State, 63 Tex. Crim. 595, *Page 461 141 S.W. Rep., 232, and the companion case of Hutcherson v. State, 62 Tex.Crim. Rep., 136 S.W. Rep., 53, it was shown that Hutcherson, a man, was assisted by Mrs. Campbell, who was then only a young woman about sixteen years of age, committed rape upon a young girl under fifteen years of age, and both were convicted therefor. And in Morris v. State,39 Tex. Crim. 371, Morris, a man, first raped a little six-year-old blind girl and then murdered her because she threatened to tell her mother on him, and he was convicted for the murder with the death penalty assessed."
In the Townser case this court said: "We have had under careful consideration the said juvenile and delinquent child Acts of the Legislature in the recent cases of McCallen v. State, 76 Tex.Crim. Rep., 174 S.W. Rep., 611, and Bartee v. State, 76 Tex.Crim. Rep., 174 S.W. Rep., 1051, and we therein fully discussed the said laws and the effect thereof. We there held that, even in a prosecution of a male under seventeen years of age for a felony, the said laws did not make it compulsory for the district judge to dismiss such felony charge and have the party proceeded against under the juvenile Act, but that the court had the power and authority in such case of felony to proceed to the trial regularly as if the party was an adult male. . . . We have no doubt that we reached the correct conclusion in those cases."
In the Davis case this court held that the district judge must have held that appellant therein "was of that character of person who should not have his case sent to the juvenile or delinquent court for trial, but should be treated as a felon. That he had a right to so adjudge and hold was decided by this court in the case of McCallen v. State, 76 Tex. Crim. 353, 174 S.W. Rep., 612. Judge Prendergast in that opinion reviews at length all the Acts of the Legislature in regard to delinquent children, and held when that question was presented to a trial judge he would have the authority to hear evidence, and, after doing so, to determine whether or not the interest of the person charged and society required that his case be sent to the delinquent court for trial, or that he be tried as a felon. The opinion in the case is decisive of the question here presented, and we do not deem it necessary to again review the provisions of the statute."
The action of the district judge in refusing to transfer this case to the Juvenile Court and trying appellant as a felon for the murder of his father was correct and this judgment should be affirmed, not reversed.
Moreover, before the decision of this case was rendered on November 7, 1917, appellant reached the age of seventeen years on October 10 prior thereto. Therefore this case should not be reversed on that account, for on the next trial he must be tried as a felon and nott as a juvenile, as expressly held by this court in Arrendell v. State, 60 Tex.Crim. Rep., and to now reverse the case because appellant was not tried as a juvenile can not possibly avail him on another trial.
I respectfully but earnestly dissent from the reversal of this case. *Page 462