Ex Parte Webb

374 S.W.2d 675 (1964)

Ex parte Eubern O. WEBB.

No. 36695.

Court of Criminal Appeals of Texas.

January 29, 1964.

Shannon & Shannon, Fort Worth, for relator.

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

WOODLEY, Presiding Judge.

The petitioner is confined in the penitentiary under Sentence in Cause No. D-2778-J pronounced in Criminal District Court No. 3 of Dallas County on February 28, 1961, ordering his confinement for life for the offense of robbery with firearms.

The punishment for robbery with firearms is "death or by confinement in the penitentiary for any term not less than five years." Art. 1408 P.C.

Petitioner alleges that he has served the minimum term of five years and that the remainder of the sentence is excessive and void.

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; Ex parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588; Ex parte Geisling, Tex.Cr.App., 243 S.W.2d 833; Ex parte Goss, 159 Tex. Cr.R. 235, 262 S.W.2d 412 and Ex parte Foight, 165 Tex.Cr.R. 153, 306 S.W.2d 132, cited by the petitioner, sustain his contention that he is entitled to be discharged from further confinement under the life sentence.

The writ is granted and the petitioner is ordered discharged from further confinement under said life sentence.

MORRISON, J., dissents.