Appellant was convicted of the offense of murder and his punishment was assessed at confinement in the state penitentiary for a term of 99 years.
The record reflects that appellant, a boy of 16 years of age, on the 14th day of July, 1945, by force, entered the home of M. A. Barton during the absence of Mr. and Mrs. Barton, took some jewelry and some small change which he found therein and appropriated the same. He then took Mr. Barton’s 22 caliber rifle from behind a door and secreted himself with it in a closet. When Mrs. Barton, who had gone to get her mail, returned and while sitting in her bedroom reading, he emerged from his hiding place with the rifle, commanded her to “stick ’em up.” *8He then forced her to write a check in the sum of Forty Dollars payable to him. After he had obtained the check, he attempted to ravish her, but she managed to dart out of the house and run in the direction of where her husband was plowing in a field some 700 yards away. Appellant followed her out of the house and shot her in the back, from the effects of which she died. He then ran away taking the loot, including the check, with him. On the afternoon of the same day, he gave the watch, rings, and Ten Dollars to his mother. He was arrested soon after he cashed the check at which time he made a written confession and as a result thereof, the officers found and recovered the stolen property.
Thereafter, on the 20th day of July, 1945, the County Attorney of Collingsworth County filed a petition with the County Clerk charging appellant as a delinquent child by reason of having theretofore, on the 9th day of May, 1945, burglarized the home of James Holley with intent to commit theft and did, then and there, fraudulently take from said house five cartons of cigarettes of the value of Eight Dollars, without the consent of James Holley, etc. Upon a hearing of the matters charged in the petition, he was adjudged a delinquent child and committed to the State’s training school for boys at Gatesville for an indeterminate period of time not exceeding beyond the time when he shall reach the age of twenty one years,, subject to modification or revocation from time to time.
Thereafter, on the 24th day of May, 1946. after he had arrived at the age of seventeen years, the grand jury returned an indictment against him wherein he was charged with the murder of Lora Barton by shooting her with a gun. Upon the return of the indictment, the court issued a bench warrant for him and he was returned to Collingsworth County under and by virtue of said warrant, tried, and convicted for the murder of Mrs. Barton.
When the case came up for trial. ‘mnelFnt filed a nlea of former jeonardy based on the ground that since he was under 17 years of age at the time of the commission of the offense charged, and since he had been adjudged a delinquent child and sent to the State’s training school for boys, it included and covered all offenses of which he was guilty at the time he was adjudged a. delinquent child. The court declined to entertain said plea and overruled same to which he excepted.
This constitutes his first complaint. It will be noted from *9the foregoing statement that the question to be disposed of is, did former jeopardy apply in the instant ease? We do not think so for the following reasons: First, the burglary by appellant of the James Holley home was committed five days prior to the time he killed Mrs. Barton. The two offenses were separate and distinct. Neither had any relation to the other. Section 14 of Article I of our State Constitution provides: “No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.” It will be noted that appellant could not claim jeopardy since the offense for which he was on trial and the one for which he had been adjudicated a delinquent child were separate and distinct offenses.
Subdivision (3) of Section 13 of the Acts of the 48th Legislature, among other things, provides “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 shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a convicton, nor shall any child be charged with or convicted of a crime, in any court.” Therefore, by reason of the foregoing provision of the Act referred to, the appellant was not convicted of a crime. He was not punished, he was merely adjudged a delinquent child and sent to the State’s training school for boys for moral training, reformation, and education. Such a proceeding, under our present statute, is civil in its nature. Therefore, jeopardy does not arise by virtue of such a civil proceeding.
We come now to consider the question of whether or not the District Court of Collingsworth County had jurisdiction to try him on the charge of murder while he was still under the jurisdiction of the juvenile court. This presents quite an interesting question which is not free from difficulty. Section 3 of said Act defines a delinquent child to mean a female person over the age of 10 years and under the age of 18 years; a male person over the age of 10 years and under the age of 17 years, who violates any penal law of this state of the grade of felony; or who violates any penal law of this state of the grade of misdemeanor where the punishment prescribed for such offense may be by confinement in jail, etc.
Section 5 thereof, provides: “The Juvenile Court shall have exclusive, original jurisdiction of proceedings governing any *10delinquent child, and such court shall be deemed in session at all times. * * * When jurisdiction shall have been obtained by the court in the case of any child, such child shall continue under the jurisdiction of the court until he becomes 21 years of age, unless discharged prior thereto; such continued jurisdiction shall, however, in no manner prejudice or constitute a bar to subsequent or additional proceedings against such child under the provisions of this Act.”
Before we begin a discussion of the question of jurisdiction, we deem it proper to here state that the Juvenile Act passed by the 48th Legislature did not repeal Art. 30, P. C., which reads as follows:
“No person shall be convicted of any offense committed before he was nine years old except perjury, and for that only when it-shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath; nor of any other offense committed between the ages of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.”
Neither did it repeal Art. 31, P. C., which reads as follows:
“One under 17 not punishable capitally.------A person for an offense committed before he arrived at the age of seventeen years shall in no case be punished with death.”
With these Articles remaining in force and effect, they should be considered and construed in connection with the Juvenile Act so as to uphold both statutes, if possible, rather than to strike down either, or both.
In Sec. 12 of the Delinquent Juvenile Act, we find the following provision:
“If during the pendency of a criminal charge or indictment against any person in any other court than a Juvenile Court, it shall be ascertained that said person is a female over the age of ten (10) years and under the age of eighten (18) years, or is a male person over the age of ten (10) years and under the age of seventeen (17) years at the time of the trial for the alleged offense, it shall be the duty of such court to transfer such case immediately together with all papers * * * to the Juvenile Court * *
*11In the case of Dendy v. Wilson, 179 S. W. (2d) 269, the Supreme Court, touching the question under consideration, said, that the Section just quoted implied “that if the defendant is above the statutory age limit at the time of trial, even though the act upon which the prosecution is based was committed while the defendant was within the age limits, the courts can try him for the crime.” This interpretation of the language of the Act is fortified by the fact that the Court of Criminal Appeals has always held that the age at the time of trial is the controlling factor. See McLaren v. State, 85 Tex. Cr. R. 31, Walker v. State, 119 Tex. Cr. R. 330, Stallings v. State, 129 Tex. Cr. R. 300, Hardie v. State, 140 Tex. Cr. R. 368; 144 S. W. (2d) 571. With this construction of Section 12 of said Act, we are in accord. Such seems to be the logical conclusion to be drawn from the language of said section of said Act.
To hold that a male child who committed an offense two days, two weeks, or two months prior to the time that he became 17 years of age could not be prosecuted for said offense after he reached his 17th year would be creating a haven of refuge for the criminally inclined. It would be destructive to the social fabric of orderly society. Such a doctrine, we are unwilling to announce. On the other hand, to hold that a boy who committed a heinous offense before he became 17 years of age could not be tried for that offense after he arrived at the age of 17 would be equally as bad. Orderly society is entitled to protection as well as a delinquent child.
Having reached the conclusion that the trial court had the legal right to try appellant for the offense with which he stood charged, it also had the right to take him from the State’s training school and bring him before the bar of justice to be dealt with as provided by the Penal Code of this State. Otherwise, he would be immune from prosecution until he had reached the age of 21 years. This, in our opinion, was not the intention of the Legislature at the time it enacted the Juvenile Statute.
His third complaint relates to the action of the trial court in declining to grant his application to appoint a psychiatrist as provided for in Sec. 16 of Art. 2338 of the Revised Civil Statutes. This section of the Article referred to is applicable on the hearing of cases in the Juvenile Court and is not applicable in the trial of a defendant properly charged with a felony in the District Court. In the instant case, he might have had a trial on the issue of insanity prior to the trial on the indictment *12wherein he was charged' with murder, had he complied with Art. 923a, C. C. P.
Appellant’s fourth complaint relates to the action of the court in admitting in evidence, over his timely objection, a written voluntary confession made by him to the District Attorney after the statutory warning was given him. He bases his contention on Subdivision 3 of Section 12 of the Delinquent Juvenile Act which among other things provides as follows:
“The disposition of the child or any evidence in the court shall not be admissible as evidence against the child in any case or proceeding in any other court, other than a Juvenile Court, etc.”
It will be noted that the language of Subdivision 3 of Sec. 12 prohibits the use of any evidence given on the hearing of a delinquent child in a Juvenile Court, to be used against him in any case or proceeding in any other court. This confession was made by him three days before the petition was filed in the Juvenile Court charging him with the burglary of the Holley home and four days before he was adjudged to be a delinquent child, and so far as this record shows, the confession was not introduced in evidence on the hearing in the Juvenile Court. Consequently, the State did not violate the provision of the section referred to by introducing it upon appellant’s trial for the murder of Mrs. Barton. Moreover, the purported confession only related to the murder of Mrs. Barton. There was not a word in the confession which in any sense related to the burglary of the Holley home.
No reversible error appearing in the record, the judgment of the trial court is affirmed.
Opinion approved by the Court.