Lopez v. State, 171 Tex.Crim. R., 352 S.W.2d 106. Appellant's last contention is that the search warrant was not produced by the State and exhibited to the Court as a valid search warrant.
In Perry v. State, 171 Tex.Cr.R. 282, 350 S.W.2d 21, carrying a pistol was the ground alleged in Juvenile Court, and the conviction was for murder. In Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106, commitment as a juvenile, after the killing, was on allegation that Lopez was incorrigible and habitually ran away from home. Conviction was under indictment for murder.
While testifying on the main trial he made no complaint of any mistreatment during the trip to Austin. From the record as presented, it is concluded that the written statement of the appellant is not shown to have been illegally obtained from him in violation of the due process clause of the Fourteenth Amendment of the United States Constitution and that the same was inadmissible in evidence as a matter of law. McHenry v. State, 163 Tex.Cr.R. 436, 293 S.W.2d 773; Lopez v. State, 171 Tex.Cr.R. 552; 352 S.W.2d 106; Collins v. State, 171 Tex.Cr.R. 585, 352 S.W.2d 841; Fernandez v. State, Tex.Cr.App., 353 S.W.2d 434; Marrufo v. State, Tex.Cr.App., 357 S.W.2d 761. It is contended that the trial court erred in overruling his motion for a new trial based upon newly discovered evidence.
This footnote is supplied to show that the "Act" being discussed in the Dearing case was the Juvenile Delinquency Act. To the authorities cited in the quotation above from Dearing v. State could be added many later cases, including: Roberts v. State, Tex.Cr.App., 219 S.W.2d 1016; Peterson v. State, Tex.Cr.App., 235 S.W.2d 138; Perry v. State, Tex.Cr.App., 350 S.W.2d 21; Hultin v. State, Tex.Cr.App., 351 S.W.2d 248; Lopez v. State, Tex.Cr.App., 352 S.W.2d 106; Foster v. State, Tex.Cr.App., 400 S.W.2d 552; and Ex parte Miranda, Tex.Cr.App., 415 S.W.2d 413. As is stated in the latter part of the quotation just above, the age of the accused at the time of the trial, and not at the time of the commission of the act, is the controlling factor insofar as the respective jurisdictions of the juvenile court and the district court are concerned.
In the instant case, there is no affirmative showing of the witness's prior statements, and we find that the witness was not impeached. See Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106; cf. Henley v. State, Tex.Cr.App., 387 S.W.2d 877. It follows that the court was not in error in refusing to limit the testimony of the witness for impeachment purposes.
His failure to do so after attempting to lay a foundation in the absence of a showing of bad faith is not a reason for complaint by the appellant. See Lopez v. State, 171 Tex.Crim. R., 352 S.W.2d 106 (1961). Since the prosecutor did not testify and the impeachment was not completed, hearsay evidence was not placed before the jury.
Thirdly, after the appellant testified he could not recall any such convictions, the matter was not further pursued by the State. No proof of the same was offered so that the same could be used for enhancement or impeachment. Cf., e.g., Lopez v. State, 171 Tex.Crim. R., 352 S.W.2d 106, 108 (1961). And, no claim is advanced and there is no showing that the prosecutor acted in bad faith.
R., 282 S.W.2d 711; Lopez v. State, 171 Tex.Crim. R., 352 S.W.2d 106; Bates v. State, Tex.Cr.App., 409 S.W.2d 860. It is concluded that the trial court under the facts presented did not err in permitting the state to examine the witness Pratt as shown.
In Shaw v. State, 89 Tex.Cr.R. 205, 229 S.W. 509, this Court had occasion to draw a distinction between refreshing the memory of the witness and impeaching him. See also 1 Branch's 2d Ann.P.C., Sec. 182, p. 190, and Lopez v. State, 171 Tex.Cr.R. 552, 352 S.W.2d 106. The judgment is affirmed, and appellant's motion for rehearing is overruled.
The decisions of this Court, including those cited by appellant, construing the statutes in effect at the time appellant was indicted, tried, convicted and gave notice of appeal, are to the effect that it was not error to wait until a child is 17 years of age to prosecute him as an adult for a murder committed when he was under 15 years of age. The age of the defendant at the time of the trial and not at the time of the offense controls. Roberts v. State, 153 Tex.Crim. R., 219 S.W.2d 1016; Wood v. State, 171 Tex.Crim. 309, 349 S.W.2d 605; Perry v. State, 171 Tex.Crim. 282, 350 S.W.2d 21; Martinez v. State, 171 Tex.Crim. R., 350 S.W.2d 929; Hultin v. State, 171 Tex.Crim. R., 351 S.W.2d 248; Lopez v. State, 171 Tex.Crim. R., 352 S.W.2d 106. House Bill 444, enacted at the last legislature, amending certain sections of Art. 2338-1 V.C.S. (Acts 59th Leg. 1965, p. 1256, Ch. 577) was approved June 17, 1965.