Popham v. State

228 S.W.2d 857, 154 Tex. Crim. 529, 1950 Tex. Crim. App. LEXIS 2139

• Court: Court of Criminal Appeals of Texas
• Decided: March 8, 1950
• Docket: 24668
• Status: Published

Opinions

DAVIDSON, Judge.

Appellant was, upon his plea of guilty, convicted for the offense of assault with intent to rape, with punishment fixed at confinement in the penitentiary for three years.

The trial court, acting under and by authority of the Adult Probation and Parole Law, Chapter 452, Acts 50th Legislature, in 1947, Art. 781b, Vernon’s C. C. P., suspended the imposition of that sentence and placed appellant upon probation.

Shortly thereafter, upon motion of the state and after hearing, the order of probation was revoked and sentence passed. It is from this order that appellant appeals.

Appellant presents various contentions as to why the trial court was without authority to revoke the probation. These are not discussed because we have concluded that the trial court was without authority, in the first instance, to place appellant upon probation.

Under Section 1 of the Adult Probation and Parole Law, district courts are expressly precluded from extending probation to one convicted of murder, rape, and “offenses against morals, decency, and chastity where the maximum punishment assessed the defendant does not exceed ten (10) years imprisonment . . .”

The crime of rape having been expressly mentioned by name and the crime of assault with intent to commit that crime being so closely related thereto, the opinion is expressed that it was the intention of the legislature that such crime be included within the meaning of the term, “offenses against morals, decency, and chastity,” as used in the statute.

Accordingly, we hold that the trial court was without authority to place appellant upon probation after conviction for the offense of assault with intent to rape, and that he did not err in revoking the unauthorized order of probation.

The judgment is affirmed.

Opinion approved by the court.