ON MOTION FOR REHEARING.
GRAVES, Judge.*15Appellant’s motion reiterates the complaints set forth in his original brief herein, as well as comments on a failure of the two concurring opinions herein to be in total agreement on certain phrases of the Juvenile Act of the 48th Legislature, Regular Session, page 313, et seq. We can but repeat that we do not think appellant was entitled to plead his trial as a juvenile on account of a certain charged burglary, as having been thereby placed in jeopardy for the unlawful killing of Mrs. Barton.
It is noted that the pleading upon which appellant was ad-adjudged a delinquent child in no way mentioned any offense save the burglary of a house and theft therefrom, same occurring some five days prior to the death of Mrs. Barton. It was necessary to charge in writing and prove whatever violations of the penal laws by the juvenile relied upon by the State to show the delinquency of the juvenile. See 15 Tex. Jur. pp. 12-13, sec. 11; Milton Robinson v. State, (opinion of Court of Civil Appeals, dated Oct. 1, 1947; Ex parte Boggs, 171 S. W. (2d) 879; Reeves v. State, 162 S. W. (2d) 705. It is the holding of these last two cases that the State’s pleading in a juvenile case should set forth the acts complained of that are relied upon to constitute the delinquency, and it follows that acts not so set forth cannot be relied upon to establish such delinquency. We think this appellant was adjudged a delinquent on account of the prior offense of burglary, and for that and other reasons set forth in the original opinion, he has never been in jeopardy for the murder of this unfortunate lady.
The construction of this recent act of the 48th Legislature (page 313, et seq.) has given this court much concern. This writer confesses his inability to understand how one must first violate a penal law of the state before he can become a delinquent under Section 3 of the act, and yet the same law declares that such violation is not a crime but a mere civil offense, and that a juvenile who has unlawfully taken a human life is not guilty of a crime although such act is murder, and must be alleged and proved if relied upon under Section 3 (a) of such act. The crime of murder is as old as history, both sacred and profane, and while we think the Legislature has the power to grade and fix the punishment for murder, it cannot say that an unlawful killing of a person upon malice is not an offense against the statutory law depending upon the age of the perpetrator.
We think the matter at difference in the two concurring opinions can be solved by here holding that while the appellant *16is confined and punished by reason of his delinquency, he is not being confined and punished for the crime of burglary. True it is that because he has committed an offense denounced as penal, that such was the reason of his delinquency having been determined and his confinement is caused by the fact of his being a delinquent child; and although in the absence of such burglarious act, his delinquency could not be established, nevertheless his confinement, and therefore punishment, is for being a delinquent child and not for being a convicted burglar.
Another element of his conviction is the fact that he was a child as designated by the recent Legislative act, and it can be said that he has been tried for being a delinquent child, such being caused, among other things, by his therein set forth burglarious act. We do not think the reasoning in these opinions is in conflict with Santillian v. State, 182 S. W. (2d) 812, and we leave to other and future cases many vexing problems that will doubtless be presented to us on account of the language found in the Act of the 48th Legislature, p. 313.
We think the conclusion heretofore expressed in the original opinion properly disposed of the matters arising herein, and appellant’s.motion will therefore be overruled.