Ex Parte Davis

412 S.W.2d 46

• Court: Court of Criminal Appeals of Texas
• Decided: February 15, 1967
• Docket: 39935
• Status: Published

Opinions

OPINION

McDonald, judge.

This is an original application for habeas corpus by relator who is confined in the Texas Department of Corrections under sentence in Cause No. 11692-A of the District Court of Wichita County, Texas.

The indictment in said cause charged relator with the offense of assault with intent to rape and the judgment, upon a plea of guilty before the court, and the sentence reflect that the punishment was assessed at confinement in the penitentiary for life.

The punishment provided by statute for the offense of assault with intent to rape is “for any term of years not less than two.” Art. 1162, Vernon’s Ann.P.C.

Relator relies upon Ex Parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403, to sustain his position. True, in that case a life sentence was imposed for this identical offense. This was a 1956 case, opinion written by Judge Woodley and a dissenting opinion by Presiding Judge Morrison. The writ of habeas corpus was granted and relator was ordered discharged. The holding of this court at that time in the Rolen case was that “Life imprisonment for such offense is not authorized by statute and is excessive.” Relator had served more than the minimum punishment provided by law for the offense for which he was charged and convicted, and as to the excessive punishment, the judgment was held void and relator was held to be entitled to his discharge.

Ex Parte Webb, Tex.Cr.App., 374 S.W.2d 675, is the only case to reach this Court, prior to this one, since this writer has been a member of the Court, in which a petitioner sought his discharge under the rule announced by this Court in Rolen, supra. While the writer agreed with Judge Wood-ley’s opinion in the Webb case, supra, he is now convinced that he erred in so doing, and now confesses error. The writer does not agree with the holdings of this Court in Rolen, supra. Cases similar to the case at bar are: Ex Parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226; Ex Parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412; Ex Parte O’Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336; Ex Parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344; Daugherty v. State, 146 Tex.Cr. R. 303, 174 S.W.2d 493; Ex Parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588; Ex Parte Geisling, Tex.Cr.App., 243 S.W.2d 833 and Cuellar v. State, 151 Tex.Cr.R. 176, 206 S.W.2d 250. The writer feels and believes that the correct disposition of this case is controlled by the case of Bailey v. United States, 74 F.2d 451, 452, wherein the Court of Appeals for the Tenth Circuit had before it practically the identical question as is here presented. There the court said:

“It is our opinion that Congress did not use the phrase ‘term of years’ in the technical sense attributable to it when applied to estate in lands. Life being of limited duration and death being certain, a sentence for life is definite and certain. It is tantamount to a sentence for a definite term of years greater than the possible life span of the person sentenced.”

The identical language contained in the foregoing holding was used by Presiding Judge Morrison in his dissent in Ex Parte Goss, supra.

The writer is committed to that school of thought expressed by this Court in the cases of Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842, and Joseph v. State, Tex.Cr.App., 367 S.W.2d 330. Judge Woodley dissented in the Joseph case and while he did not participate in the Brown case, he did express his disagreement over the disposition of the Brown case in his dissent in Joseph.

As may be readily apparent from the foregoing discussion of the various cases, we have a divided court and a, difference of opinion. The writer, with whom Presiding Judge Morrison concurs, feels that the line of cases relied upon by petitioner, Ex Parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226; Ex Parte O’Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336; Ex Parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344; Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493; Ex Parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588; Cuellar v. State, 151 Tex.Cr.R. 176, 206 S.W.2d 250; Ex Parte Geisling, Tex.Cr.App., 243 S.W.2d 838; Ex Parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412; Ex Parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403; Ex Parte Foight, 165 Tex.Cr.R. 153, 306 S.W.2d 132 and Ex Parte Webb, Tex.Cr.App., 374 S.W.2d 675, should all be overruled, and they are accordingly overruled.

From what has been said, it is clear that petitioner should be denied the relief sought. It is so ordered.