This is the second appeal in this case. The facts are fully stated in the opinion on the former appeal, and we omit discussion of them here.
But one question is presented by able counsel for appellant, before the court on this appeal, which, broadly stated, is whether one, who commits a felony while under seventeen years of age, if he is more than seventeen years of age when brought to trial, could properly be tried in the District Court in the same manner as one who was more than seventeen years of age when the offense was committed.
The language of the entire Juvenile Act, embraced in Title 17 C.C.P. of Texas, is that ordinarily used in speaking of a child. Those subject to such laws are called "children." If violators of its provisions they are called "delinquents" and are committed to a "school" where it is expressly provided they may not be "detained" after reaching the age of twenty-one years.
It could hardly be seriously contended that one who had committed a heinous crime, as, for instance, murder, while fifteen or sixteen years of age, and who was not apprehended or indicted until past twenty-one, would, by reason of such lapse, go absolutely unwhipped of justice, unless the language of the law were such as that it was reasonably susceptible of no other construction than one which produced such result. And this is true whether such lapse resulted from an act of the accused or of another, for neither his resistance to, or avoidance of, prosecution, nor the State's failure or refusal to prosecute could add to or take from the force of the law as written.
Article 1195, Title 17, C.C.P. provides that when an indictment is returned against a person, he, or some other named person for *Page 33 him, may at any time before trial file a sworn statement in court setting forth the age of such person as a juvenile. It is not provided nor hinted that the age when the offense was committed should be set forth in such application or thereafter inquired into. Said article further provides for a hearing before the court upon such application, and uses this language: "And if he be satisfied from the evidence that such juvenile is less than seventeen years of age, said judge shall dismiss such prosecution, etc." The plain inference being that if at such time it appear from such hearing that the accused is not then less than seventeen years of age, the prosecution shall not be dismissed but shall proceed as in other felony cases.
Said act further contains the following language: "The age of the defendant shall not be admitted by the attorney representing the State, but shall be proved to the satisfaction of the court by full and sufficient evidence that the defendant is less than seventeen years of age, before the judgment of commitment to such institution shall be entered." It is too plain for cavil that the inquiry and commitment referred to have reference to the age of the accused when brought before the court, and not to the time of the commission of the offense.
Such being the law, we are called upon to decide whether the trial court in this case erred at its January term, 1918, when it found; — correctly as admitted by appellant; — that at that time appellant was not under seventeen years of age, and in proceeding to try him for killing his father under the usual felony procedure in such cases. We hold that it did not. Counsel urges that his client should have been tried in the first instance in the Juvenile Courts and that the District Court erred in not dismissing such case upon the first hearing, and sending the prosecution to the Juvenile Court. This court agreed with this contention of counsel in its former opinion, but the action of the lower court in that first trial is not now before us for revision. That the said trial court then erred in not remanding the appellant for prosecution to the Juvenile Courts is no reason why he should not now be tried in a proper manner in a court which unquestionably has jurisdiction in this case. If, upon the hearing of the question of his age, on the trial from which this appeal is prosecuted, it was found by the court that he was then over seventeen years of age, the court properly and correctly retained jurisdiction of the case and properly proceeded to hear and determine same. It is not the province of this court to attempt to redress real or imaginary wrongs of defendants unless the same result from the failure to follow the law in the instant case and in the matter before the court. If appellant thinks the law is wrong the Legislature is the tribunal to which he should appeal. If he thinks the punishment given in this case is not commensurate with his tender years, that *Page 34 is a matter that should be presented to the Chief Executive. Few cases of more deliberate, cold-blooded homicide are to be found in the books.
The judgment of the lower court is affirmed.
Affirmed.
ON REHEARING. March 12, 1919.