(Concurring).
*14I am concurring in the affirmance of the case, but cannot agree to the reasoning in its entirety. The appellant was first tried for burglary, while this conviction was for murder. Consequently there is no basis for a plea of former jeopardy. I cannot say that he was not punished as a juvenile, in that case, for such conclusion is contrary to Santillian v. State, 182 S. W. (2d) 812, and would, in my opinion, disqualify every boy between the ages of ten and seventeen, and every girl beween the ages of ten and eighteen, to testify as a witness in any case, as fully discussed in the Santillian case. In writing on the motion for rehearing in that case Judge Graves said:
“We think the legislature had not the intention nor the power to say that no child shall be ‘charged with or convicted of 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.”
The reasoning approved by my associates in the instant case appears to me to be in conflict with the above quotation from the Santillian case. In the opinion of the writer, any effort to reconcile the provisions of Section 13, Acts of the 48th Legislature, commonly referred to as the juvenile act, is futile. The purpose of the act is laudable. Some of the provisions are practical, but there is no escaping the fact that much of the act is illogical. The legislature has the power to rewrite and make valid such provisions as are in conflict with the Constitution, but I do not feel that this court can.
It has always been held that a boy committing a criminal act while under seventeen years of age may thereafter be tried for the offense. Since the Juvenile Act under discussion declares such child cannot commit an offense, I am at a loss to understand how time can make it so. The answer is in the weakness of the pronouncement.