The offense is murder; the punishment, 7 years.
The sufficiency of the evidence is not challenged. It shows that on June 3, 1961, the appellant, then 16 years of age, while riding around in an automobile with Gilbert Cuellar and two other friends, came upon Antonio Rodriguez, the deceased, his brother Jesse Rodriguez and one Johnny or Tony Palacios.
After a brief exchange of words and after some rocks were thrown at the car, the appellant and Cuellar left the scene and took their friends home.
The appellant then borrowed a .22 caliber rifle and with Cuellar returned to the area where they had encountered the deceased and his companions. Cuellar was driving and as they caught up with the trio who were on foot, the appellant, intending to shoot Jesse Rodriguez, shot and killed Antonio Rodriguez, the deceased.
Complaint was filed charging the appellant with the murder. He was turned over to the Bexar County Juvenile Department on June 6, 1961, after the magistrate, Judge A. A. Semaan, found that he was under 17 years of age.
The Criminal District Attorney of Bex-ar County then signed a petition which was filed in the 150th District Court of Bexar County sitting as a juvenile court on June 14, 1961, representing that the appellant appeared to be a delinquent child, the only ground or reason alleged being that on or about June 3, 1961 he voluntarily and with malice aforethought killed Antonio Rodriguez by shooting him with a .22 caliber rifle.
On June 29, 1961, the district attorney filed his first amended motion for non-suit, the record showing that he had previously sought to withdraw his petition without success.
His amended motion for non-suit was overruled “for the sole and only reason that the granting of same would have the effect of circumventing the Juvenile Court Act of the State of Texas, Art. 2338-1, Vernon’s Annotated Civil Statutes, and would rob the court of jurisdiction to hear said cause.”
When the case came on for trial in the Juvenile Court, the district attorney filed motion to dismiss for want of jurisdiction, contending that because of the timely filing of his motion for non-suit the court had lost its jurisdiction.
His motion to dismiss being overruled, the district attorney filed motion for continuance in which certain portions of Art. 2338-1 were quoted and it was alleged that if the cause proceeded to trial “The State of Texas would be forever after precluded from prosecuting said juvenile as an adult for the same offense alleged in the petition herein.”
His motion for continuance being overruled, the district attorney proceeded to trial “under fear of contempt of court and attending penalties,” stating “We feel that by continuing to proceed in this juvenile hearing that we would thereafter be precluded to try this juvenile as an adult within 5 or 6 months from now.”
Trial before a jury empaneled on the court’s motion resulted in a verdict, returned July 21, 1961, finding the appellant to be a delinquent child.
Judgment was rendered upon the jury’s verdict on July 24, 1961, and it was ordered that the appellant herein be committed to the care, custody and control of The Texas Youth Council for an indeterminate period of time not to exceed the time he shall have become 21 years of age, and it was ordered that the appellant be conveyed to the Gates-*38ville State School for Boys, Gatesville, Texas.
The record shows that the judgment was complied with and the appellant herein was taken to Gatesville where he remained in custody and under the control of the State School for Boys until after he had reached the age of 17 and had been indicted for the murder of Antonio Rodriguez.
The district attorney perfected appeal to the Court of Civil Appeals from the judgment of the Juvenile Court.
The Court of Civil Appeals affirmed the judgment, holding that the Juvenile Court did not abuse its discretion in overruling the district attorney’s motion for a nonsuit. State of Texas v. Garza, Jr., 358 S.W.2d 749.
In the opinion of the Court of Civil Appeals it is stated, in part: “In this proceeding, the District Attorney had no personal interest or property right, and his purpose, apparently, was to prevent a hearing until Maximino Garza, Jr., had arrived at the age of seventeen years, when he •might be tried as an adult, and thus defeat the jurisdiction of the Juvenile Court. This would have the effect of defeating the entire purpose of the Juvenile Act. Art. 2338-1, supra.”
After the opinion of the Court of Civil Appeals was handed down, the state through the district attorney filed a motion to dismiss the appeal, alleging the facts shown elsewhere in the record herein, that pending the appeal Maximino Garza, Jr., had become an adult amenable to the penal laws and that on July 3, 1962, he “was indicted by the Bexar County Grand Jury for the offense of murder with malice, the identical offense alleged in appellant’s original pleading filed in the Juvenile Court.”
Appellant complains that the trial court erred- in overruling his plea of former jeopardy and his motion in arrest of judgment and here urges that the state should be prohibited from prosecuting the appellant for the same offense alleged in the petition filed in the Juvenile Court as the only basis for declaring him a delinquent child. He contends that to permit such criminal prosecution violates the 5th Amendment to the Constitution of the United States; Art. I, Section 14, of the Constitution of Texas, Vernon’s Ann.St, and Art. 8 of the Code of Criminal Procedure, each of which provides that no person shall be twice put in jeopardy of life or limb.
Appellant further contends that to allow the state to prosecute him under the indictment for murder, for the identical offense alleged in the petition upon which he was tried in the Juvenile Court and adjudged to be a delinquent child, is a deprivation of due process required by the 14th Amendment to the Constitution of the United States.
Proceedings in Juvenile Court are Civil rather than Criminal in nature. Appeals are to the Court of Civil Appeals and may be carried to the Supreme Court as other civil cases. Art. 2338-1, Sec. 21, V.A.C.S.
The Court of Civil Appeals having jurisdiction to decide the matter, the question of whether the state, having invoked the jurisdiction of the Juvenile Court, should have been allowed to dismiss the case was foreclosed on appeal.
The question of jeopardy and of denial of due process by reason of prosecution under indictments for felony offenses committed while the accused was under 17 years of age and after he had been adjudged to be a delinquent child has been before this Court in a number of rather recent appeals. Wood v. State, 171 Tex.Cr.R. 307, 349 S.W.2d 605; Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21; Martinez v. State, 171 Tex.Cr.R. 443, 350 S.W.2d 929; Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248; and Lopez v. State, 171 Tex. Cr.R. 552, 352 S.W.2d 106.
Only two of these decisions need be discussed, the others being cases where there was no question but that the offense charg*39ed in the indictment was not the identical offense relied upon in the Juvenile Court to establish that the juvenile was a delinquent child.
In Martinez v. State, 350 S.W.2d 929, the majority found that the subsequent shooting and killing on the driveway of the service station was a separate assault from that made inside the station by presenting a pistol and demanding that the cash register be opened, and the majority holding was that the commitment as a juvenile delinquent based upon the assault with intent to rob was not available as a defense to the murder indictment returned after the defendant reached the age of 17 years, and that no denial of due process of law or violation of the principles of fundamental fairness was shown.
Judge Morrison held to the view that the murder arose out of the attempted robbery and the offenses were the same and, in his dissent, stated what would appear to be the correct rule to be applied where the identical felony charged in the indictment was the sole ground upon which the defendant was committed and restrained as a result of the state having secured a judgment in the juvenile court finding him a delinquent child.
In Hultin v. State, 351 S.W.2d 248, Judge McDonald wrote at length and expressed his views upon the question of jeopardy. All of the Court reached the conclusion that the state was not bound by the supplemental petition filed by appellant’s counsel alleging that he was a delinquent child because he had committed the murder for which he was indicted after he reached the age of 17. Our holding was that the prosecution for murder was not barred by reason of the defendant having been adjudged a delinquent child and committed and restrained under such judgment, the state’s petition having alleged as ground a separate felony offense and not the murder.
We need not here concern ourselves with a consideration of the question of former conviction in a court of competent jurisdiction or of former jeopardy based upon a proceeding, civil in nature, in the Juvenile Court prior to indictment. In addition to jeopardy, denial of due process in violation of the 14th Amendment to the Constitution of the United States is presented.
The record herein shows without dispute that as a result of the state having invoked the jurisdiction of the Juvenile Court upon the allegation that the appellant herein committed the murder for which he was indict-, ed, tried and convicted after he reached the age of 17, the appellant was committed and remained in custody and under control of the State School for Boys until he was indicted and taken into custody to answer said indictment.
It is interesting to note that the sentence was credited as for time spent in jail (Art. 768, Vernon’s Ann.C.C.P.), the provision being “said sentence to begin and operate from and after the 21st day of July, A.D. 1961, the date of defendant’s incarceration.”
As has been stated, the verdict finding the appellant herein to be a delinquent child was returned on July 21, 1961.
To affirm this conviction in the light of the record would be to hold that, for an offense committed before he reached the/ age of 17 years, the offender who has committed no other offense against the law-may, upon petition of the district attorney, be adjudged a delinquent child and held in custody as such, and without regard to how he may respond to the guidance and control afforded him under the Juvenile Act, be indicted, tried and convicted for the identical offense after he reaches the age of 17.
We sustain appellant’s contention that such a conviction violates the principles of fundamental fairness and constitutes a deprivation of due process under the 14th-Amendment.
The judgment is reversed and the prosecution ordered dismissed.