MORROW, Judge.
Appellant was convicted of murder. He was a boy under seventeen years of age at-the time of the commission of the offense and at the time of the trial. This fact was brought to the attention of the court by a sworn statement in accord with article 1195, Code of Criminal Procedure, and the fact duly established by evidence, and found to exist by the court as shown by the bill of exceptions. Appellant sought, in consequence thereof, to have the felony indictment dismissed. The action of the court in refusing to dismiss the felony charge is made the basis of complaint and properly brought before this court for review.
Article 1195, supra, is as follows: “Male persons under the age of seventeen accused of felony to be prosecuted as juvenile delinquents; committed to State Industrial School for Boys upon indeterminate sentence; time of detention; proof of age; proviso.—When an indictment is returned by the grand jury of any county charging any male juvenile under the age of seventeen years with a felony, the parent, guardian, attorney or next friend of said juvenile or said juvenile himself, may file a sworn statement in court, setting forth the age of such juvenile, at any time before announcement of ready for trial is made in the case.
When such statement is filed the judge of said court shall hear evidence on the question of the age of the defendant; and, if he be satisfied from
the evidence that said juvenile is less than seventeen years of age, said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent, under the provisions of this Act.
If said juvenile be found to be delinquent, and sentence be not suspended, as provided in the laws of this State in cases of felony on first offense the defendant shall be committed to the State Industrial School for Boys upon an indeterminate sentence; provided, that such defendant shall not be detained in said school after he has reached the age of twenty-one years. Such defendant shall be conveyed to the said school by the probation officer, sheriff or any peace officer designated by the court; provided, that such conviction and detention in said school shall not deprive defendant of any of his rights of citizenship when he shall become of legal age; and provided further, that 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 said institution shall be entered. The officer conveying any defendant to said school shall be paid by the county in which conviction is rendered the actual traveling expenses of said officer and defendant; provided further, that nothing in this Act shall be held to affect, modify or vitiate any judgment heretofore entered confining any defendant to the State Institution for the Training of Juveniles; but the unexpired portion of any such judgment shall be fulfilled by the confinement of any such defendant in the State Industrial School for Boys.”
It is contended that the provisions of this statute are mandatory and that when it is made to appear in the manner required by the statute that appellant, who was charged with a felony, was a boy under seventeen years of age, and the fact was established by evidence, that the court was without discretion to refuse to dismiss the prosecution. The point has not heretofore been directly brought before this court for review. There is a statement in one of the opinions, Townser v. State, 79 Texas Crim. Rep.,
4,
182 S. W. Rep., 1104, in which views are expressed indicating that the provisions of the statute were not mandatory. The question, however, was not involved in the facts of that ease as the appellant was a female, whose rights were not defined by the statute mentioned which applies only to males under seventeen years of age. RTeither was it involved in McCallen v. State, 76 Texas Crim. Rep., 353, 174 S. W. Rep., 611, for the reason that the appellant was charged with a misdemeanor and the statute in question deals with the charge of felony. We have not been furnished with a brief defining the State’s views. We assume, however, that the learned trial judge was guided by the expressions of opinion that the statute was not mandatory, contained in the McCallen’s case, supra, and Townser’s case, supra. The article of the statute is amendatory of a similar provision in the Act of 1909, page 100, which Act in express terms left the question as to whether the proceeding should be dismissed to the discretion of the trial judge. It authorized him to dismiss it, “or the judge of the
District Court may in his discretion proceed to try the case as provided by law.” This provision touching discretion was held effective by this court in Ragsdale v. State, 61 Texas Crim. Rep., 145, decided February 15, 1911. At a subsequent session of the Legislature the provision thus passed upon by the court in Bagsdale’s case was amended so as to eliminate the language in express terms giving the district judge discretion with reference to the dismissal of the prosecution, and substituting therefor the words, “When such statement is filed the judge-of said court shall hear evidence on the question of the age of the defendant; and, if he be satisfied from the evidence that said juvenile is less than seventeen years of age said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent, under the provisions of this Act.” (Act 1913, p. 214, chap. 112.) The Legislature was cognizant of the opinion of this court in the Eagsdale case, supra, at the time the amended statute was written. If it had been the desire of the Legislature to leave the discretion in the district judge, provided in the Act of 1909, the change in the language was unnecessary. To hold that by changing the provision expressly giving discretion to one in terms mandatory the Legislature intended that the mandatory words should be given the same interpretation as the discretionary words, would, we think, be contrary to established rules touching the interpretation of statutes. 36 Cyc., 1165. The' word “shall” is not always given a mandatory effect in construing a statute. A statute, notwithstanding the usq of the word “shall,” is sometimes held directory. (Words & Phrases, 2nd series, p. 557.) When the word “shall” is used, however, the presumption is that it is in the imperative and not a directory sense. Haythorn v. Van Kauren, 74 Atl. Rep., 502; Holmes v. Royal Loan Assn., 107 S. W. Rep., 1005; Whitsett v. Wamack, 69 S. W. Rep., 24.
The presumption is that the Legislature in adopting the amendment intended to change the law, and the phraseology of the amended Act being materially different from that of the original Act, raises the presumption of an intent to change the meaning. Railway Co. v. Telephone Co., 93 Texas, 313; Jessee v. DeShon, 150 S. W. Rep., 1011; Eversole v. Eversole, 185 S. W. Rep., 487; 36 Cyc., 1165. The classification of persons amenable to punishment for crime, within constitutional limitations, is a legitimate exercise of legislative authority. Wharton on Crim. Law, secs. 364-370; Rushing Case Law, vol. 8, p. 64, but crimes and the punishment therefor must be defined by the law-making power, and operate in a uniform manner upon the individuals of the class embraced in the law.
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MORROW, Judge.
Appellant was convicted of murder. He was a boy under seventeen years of age at-the time of the commission of the offense and at the time of the trial. This fact was brought to the attention of the court by a sworn statement in accord with article 1195, Code of Criminal Procedure, and the fact duly established by evidence, and found to exist by the court as shown by the bill of exceptions. Appellant sought, in consequence thereof, to have the felony indictment dismissed. The action of the court in refusing to dismiss the felony charge is made the basis of complaint and properly brought before this court for review.
Article 1195, supra, is as follows: “Male persons under the age of seventeen accused of felony to be prosecuted as juvenile delinquents; committed to State Industrial School for Boys upon indeterminate sentence; time of detention; proof of age; proviso.—When an indictment is returned by the grand jury of any county charging any male juvenile under the age of seventeen years with a felony, the parent, guardian, attorney or next friend of said juvenile or said juvenile himself, may file a sworn statement in court, setting forth the age of such juvenile, at any time before announcement of ready for trial is made in the case.
When such statement is filed the judge of said court shall hear evidence on the question of the age of the defendant; and, if he be satisfied from
the evidence that said juvenile is less than seventeen years of age, said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent, under the provisions of this Act.
If said juvenile be found to be delinquent, and sentence be not suspended, as provided in the laws of this State in cases of felony on first offense the defendant shall be committed to the State Industrial School for Boys upon an indeterminate sentence; provided, that such defendant shall not be detained in said school after he has reached the age of twenty-one years. Such defendant shall be conveyed to the said school by the probation officer, sheriff or any peace officer designated by the court; provided, that such conviction and detention in said school shall not deprive defendant of any of his rights of citizenship when he shall become of legal age; and provided further, that 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 said institution shall be entered. The officer conveying any defendant to said school shall be paid by the county in which conviction is rendered the actual traveling expenses of said officer and defendant; provided further, that nothing in this Act shall be held to affect, modify or vitiate any judgment heretofore entered confining any defendant to the State Institution for the Training of Juveniles; but the unexpired portion of any such judgment shall be fulfilled by the confinement of any such defendant in the State Industrial School for Boys.”
It is contended that the provisions of this statute are mandatory and that when it is made to appear in the manner required by the statute that appellant, who was charged with a felony, was a boy under seventeen years of age, and the fact was established by evidence, that the court was without discretion to refuse to dismiss the prosecution. The point has not heretofore been directly brought before this court for review. There is a statement in one of the opinions, Townser v. State, 79 Texas Crim. Rep.,
4,
182 S. W. Rep., 1104, in which views are expressed indicating that the provisions of the statute were not mandatory. The question, however, was not involved in the facts of that ease as the appellant was a female, whose rights were not defined by the statute mentioned which applies only to males under seventeen years of age. RTeither was it involved in McCallen v. State, 76 Texas Crim. Rep., 353, 174 S. W. Rep., 611, for the reason that the appellant was charged with a misdemeanor and the statute in question deals with the charge of felony. We have not been furnished with a brief defining the State’s views. We assume, however, that the learned trial judge was guided by the expressions of opinion that the statute was not mandatory, contained in the McCallen’s case, supra, and Townser’s case, supra. The article of the statute is amendatory of a similar provision in the Act of 1909, page 100, which Act in express terms left the question as to whether the proceeding should be dismissed to the discretion of the trial judge. It authorized him to dismiss it, “or the judge of the
District Court may in his discretion proceed to try the case as provided by law.” This provision touching discretion was held effective by this court in Ragsdale v. State, 61 Texas Crim. Rep., 145, decided February 15, 1911. At a subsequent session of the Legislature the provision thus passed upon by the court in Bagsdale’s case was amended so as to eliminate the language in express terms giving the district judge discretion with reference to the dismissal of the prosecution, and substituting therefor the words, “When such statement is filed the judge-of said court shall hear evidence on the question of the age of the defendant; and, if he be satisfied from the evidence that said juvenile is less than seventeen years of age said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent, under the provisions of this Act.” (Act 1913, p. 214, chap. 112.) The Legislature was cognizant of the opinion of this court in the Eagsdale case, supra, at the time the amended statute was written. If it had been the desire of the Legislature to leave the discretion in the district judge, provided in the Act of 1909, the change in the language was unnecessary. To hold that by changing the provision expressly giving discretion to one in terms mandatory the Legislature intended that the mandatory words should be given the same interpretation as the discretionary words, would, we think, be contrary to established rules touching the interpretation of statutes. 36 Cyc., 1165. The' word “shall” is not always given a mandatory effect in construing a statute. A statute, notwithstanding the usq of the word “shall,” is sometimes held directory. (Words & Phrases, 2nd series, p. 557.) When the word “shall” is used, however, the presumption is that it is in the imperative and not a directory sense. Haythorn v. Van Kauren, 74 Atl. Rep., 502; Holmes v. Royal Loan Assn., 107 S. W. Rep., 1005; Whitsett v. Wamack, 69 S. W. Rep., 24.
The presumption is that the Legislature in adopting the amendment intended to change the law, and the phraseology of the amended Act being materially different from that of the original Act, raises the presumption of an intent to change the meaning. Railway Co. v. Telephone Co., 93 Texas, 313; Jessee v. DeShon, 150 S. W. Rep., 1011; Eversole v. Eversole, 185 S. W. Rep., 487; 36 Cyc., 1165. The classification of persons amenable to punishment for crime, within constitutional limitations, is a legitimate exercise of legislative authority. Wharton on Crim. Law, secs. 364-370; Rushing Case Law, vol. 8, p. 64, but crimes and the punishment therefor must be defined by the law-making power, and operate in a uniform manner upon the individuals of the class embraced in the law. The intent to vest in the trial judge the discretion to determine which individual shall be prosecuted for a felony and which treated as a delinquent juvenile, is not to be inferred. The power is doubtful because it would commit to the trial judge the arbitrary discretion to determine the grade of the offense, without judicial investigation of the facts, or facility for review. Penal Code, arts. 1-3;
King v. State, 3 L. R. A., p. 10; Ex parte United States, 242 U. S., 47; Snodgrass v. State, 150 S. W. Rep., 162, 67 Texas Crim. Rep., 615; Marshall v. State, 72 Texas Crim. Rep., 83. The legislative right to take cognizance of the youth of offenders in the passage of criminal laws and to make provisions modifying or exempting them from punishment is universally conceded. 14 Ruling Case Law, 264, and cases cited; Carr v. State, 24 Texas Crim. App., 562; State v. Yeargan, 36 L. R. A., 196, and notes. Numerous examples of the exercise of such authority are found in our own statutes, notably, article 34 of the Penal Code, declaring that no person under nine years of age shall be punished for crime except for perjury, and none between nine and thirteen except upon proof of understanding of the nature and illegality of the offense. Vernon’s C. C. P., p. 15. Article 35 of the same Code exempts persons under seventeen years from punishment with death. The Act o'f the Thirty-third Legislature under consideration, article 1195, supra, given the mandatory construction discussed, is but another example of the exercise of the same power, and so construed it gives the youth under ■seventeen years of age charged with a felony the privilege of exemption therefrom, makes it obligatory upon the court to recognize the exemption by the dismissal of the prosecution for felony, and gives the State the right to proceed against him as a delinquent. The intent of the Legislature to make the provision mandatory is emphasized by reference to another Act of the same session provided for indeterminate sentences, in that it extended the merciful provision of the indeterminate sentence ■only to those felons above the age of seventeen years, clearly indicating the legislative view that there should be no felons under that age. Art. 868a, C. C. P.
The trial court m denying appellant’s motion to dismiss committed error which requires a reversal of the judgment, which is ordered.
Reversed and remanded.