Ex Parte Rolen

294 S.W.2d 403 (1956)

Ex parte James W. ROLEN.

No. 28654.

Court of Criminal Appeals of Texas.

October 17, 1956.

No attorney for relator.

Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

This is an original application for habeas corpus by relator who is confined in the penitentiary under sentence in Cause No. 5280 in the District Court of Orange 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, P.C. Life imprisonment for such offense is not authorized by statute and is excessive.

It is made to appear that relator has served more than the minimum punishment provided by law for the offense for which he was charged and convicted.

As to the excessive punishment the judgment is void and relator is entitled to his discharge. 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, and authorities there cited.

The writ of habeas corpus is granted and relator is ordered discharged from the penitentiary.

*404 MORRISON, Presiding Judge (dissenting).

My views as to the soundness of the holding of this Court in the Erwin case were expressed in my dissenting opinion in Ex parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412. I remain of the same opinion and hence respectfully enter my dissent.