(Concurring).
I concur in the opinion of our Commissioner, Judge Krueger, in affirming this case, and deem it appropriate to state my reasons therefor.
When appellant was adjudged a delinquent child he was not convicted or punished for the crime of burglary under the Acts of the 48th Legislature. Indeed, he could not have been because the procedure in which he was adjudged to be a delinquent child was purely civil in character. He was adjudged a delinquent child based upon the act of burglary. Under the said Acts of *13the Legislature a boy between the ages of 10 and 17, or a girl between the ages of 10 and 18, may be adjudged a delinquent child for certain specified acts. When a boy passes the age of 17, or a girl passes the age of 18, it ceases to be a delinquent child. A failure to recognize this fact has, I think, caused much confusion in the use of language construing said act of the Legislature, and specially does it seem to be true with reference to the latter part of Section 13 (3) of said Act which reads: “ * * * nor shall any child be charged with or convicted of a crime in any court.” It will be noted that the language quoted is not subject to the construction that no prosecution, conviction or punishment shall ever be had for a crime committed by a boy between 10 and 17, or a girl between 10 and 18. The proper construction appears to be that if the boy or girl between the ages mentioned is proceeded against before the maximum age is reached it must be in the nature of the civil procedure for delinquency, but after the maximum age has been attained the person is no longer a child under the terms of the law in question, and may then be prosecuted for the crime committed.
Any other construction would appear to bring about a paradox in our law which the present writer cannot bring himself to believe was ever intended by the Legislature. Arts. 30 and 31, P. C. are copied in the original opinion. Neither of them are expressly repealed by the Act of the 48th Legislature. Under Art. 30 P. C. a person between the ages of nine and thirteen years of age may be prosecuted for an offense committed if it “appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.” Under that article a person under ten years of age, if brought within the provisions specified could be prosecuted, convicted arid punished for a crime committed, and could not be proceeded against as a delinquent because the Act of the 48th Legislature limits its application to those whose minimum age is ten years.
Until the Legislature in express terms prohibits the prosecution for crimes committed at the time a male person is under 17, or a female person is under 18, even after they have attained the maximum age limit, any other construction of the law than as herein suggested seems unreasonable.
For the reason herein suggested, as well as those set out in the main opinion, the writer concurs in the affirmance of the judgment.