Gordon v. State

228 S.W. 1095, 89 Tex. Crim. 59, 1920 Tex. Crim. App. LEXIS 476

Opinions

DAVIDSON, Presiding Judge.

Appellant was convicted as a juvenile and sent to the reformatory at Gatesville.

The record is before us without a statement of facts or bills of exception. The information and complaint contained seven counts. The first count seems to be in proper form, charging appellant with being under seventeen years of age. The other six counts do not show nor allege that he is under seventeen year's of age. Each count charges a felony. They were, therefore ineffective under the juvenile Act in charging felonies in a complaint and information without specifying that the party against whom these charges were filed was under seventeen years of age. There was no motion to quash, and no steps taken in regard to this matter until after the judgment was rendered, when a motion in arrest of judgment was filed. This was overruled. We are of opinion that this comes too late. The court was without jurisdiction to try felonies on a complaint and information, and under the juvenile law the exception to the above statement is found in the fact that the boy was under seventeen years of age, and, therefore, he could be charged and convicted as a juvenile for that reason, otherwise only the District Court would have jurisdiction to try the case as in ordinary felony cases. It seems that each count in the complaint and information charges a separate and distinct offense, so far as the pleadings are concerned, not growing out of the same transaction. Felonies and misdemeanors can not be joined in the same count, but under the decisions a motion in arrest of judgment would some too late, and in passing upon this case, in aid of the presumption that the court was cor rect in his judgment, it will be sustained on the theory that the evidence supported the first count in the information, which charges that appellant was under seventeen years of age, and the presumption would be that the court acted correctly in applying the facts to the proper count under which a conviction could be obtained.

As the record presents the case we are of opinion the judgment should be affirmed, and it is accordingly so ordered.

Affirmed.