Ex parte Davis

• Decision Date: 09 November 1966
• Docket Number: No. 39935,39935
• Citation: 412 S.W.2d 46
• Parties: Ex parte Melvin Carl DAVIS.
• Court: Texas Court of Criminal Appeals

Page 46

412 S.W.2d 46

Ex parte Melvin Carl DAVIS.

No. 39935.

Court of Criminal Appeals of Texas.

Nov. 9, 1966.

On Rehearing Feb. 15, 1967.

Melvin Carl Davis, pro se.

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

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 Woodley'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.

WOODLEY, Judge (dissenting).

In the opinions prepared by him which are today overruled, the writer has fully expressed his views regarding a life sentence for an offense such as assault with intent to rape; attempt to rape; burglary of a private residence, and robbery with firearms, where the statute does not in terms provide a life sentence as punishment.

The majority today announce a new rule of law which is directly contrary to the uniform decisions of this Court over a period of more than twenty years, and do so upon authority of the very decision which this Court considered, discussed and declined to follow in Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493, decided in 1943.

To reach the conclusion that a life sentence may be imposed as punishment for the offense of assault with intent to rape, the majority find it necessary to overrule opinions written by Judges Graves, Hawkins, Beauchamp, Davidson and the writer, the earliest of which is Ex Parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226, decided in 1943, and the most recent being Ex Parte Webb, Tex.Cr.App., 374 S.W.2d 675.

The majority have not overlooked their holding as to the punishment for a second conviction for the offense they now say is punishable in ordinary cases by confinement in the penitentiary for life.

The writer's views as to the applicability of Art. 62 P.C. in such cases is set out in his dissenting opinions in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187; and Sellars v. State, Tex.Cr.App., 401 S.W.2d 835.

Unless the majority is prepared to hold that a life sentence is no longer the highest punishment that may be assessed for a felony less than capital, they find themselves in the position of saying that a life sentence may be assessed for assault with intent to rape in ordinary cases but on a second or other subsequent conviction for such offense Art. 62 P.C. fixes a definite punishment of 99 years.

To the majority opinion and to the application of the new construction of statutes announced therein retroactively to uphold a life sentence for assault with intent to rape pronounced on February 2, 1962, I respectfully dissent.

OPINION ON REHEARING

ONION, Judge.

Being convinced that the previous opinion which denied relief and overruled many decisions of this Court under which relator is entitled to relief was wrong, four judges of the present five judge Court directed that the cause be set for submission on motion for rehearing and that Ex Parte Balas, 412 S.W.2d 53, be filed and submitted.

Relator, an inmate of the Texas Department of Corrections, seeks his discharge by writ of habeas corpus. The judgment and sentence, a copy of which relator attached to his pro se application, indicate he plead guilty on February 2, 1962, to the offense of assault with intent to rape in the 30th District Court of Wichita County, Texas, and was assessed a punishment of confinement in the state penitentiary for life.

The relator's contention made herein is that Article 1162, Vernon's Ann.P.C., denouncing the offense of assault with intent to rape provides for a penalty of 'any term of years not less than two'; that a life term is not included within the statute, and that therefore the judgment and sentence providing for a life term are unauthorized; that the same not being authorized the minimum term is two years; and relator having served more than such minimum term, he is entitled to his discharge as the remainder of the sentence is excessive and void.

Life imprisonment has been authorized by the Texas Legislature for the offenses of murder, rape, treason, destroying an unborn child, and for a third conviction for sale of narcotics. It is also a punishment authorized for robbery, but not for robbery when a firearm or other deadly weapon is used. Article 1408, V.A.P.C.

In addition to Article 1162, V.A.P.C. (assault with intent to rape) and the above mentioned portion of the robbery statute, other statutes authorizing confinement in the penitentiary for an unlimited term but which do not provide for life imprisonment include Article 1190, V.A.P.C., attempt to rape; Article 1398, V.A.P.C., burglary by explosives, and Article 1391, V.A.P.C., burglary of a private residence at night. It should be observed that a statute which affixes a minimum, but not a maximum, term of years as punishment is a valid statute. Myers v. State, 51 Tex.Cr.R. 463, 103 S.W. 859.

The fixing of penalties for crime is a legislative function. What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty prescribed is outside of constitutional limitations.

In Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493, this Court, speaking through Judge Beauchamp, said:

'The legislature has, in some cases, provided for life sentences and in others, for a term of years. It appears that such has been done with care and caution. We are unable to find that they have, in any case, used the two expressions interchangeably as meaning the same thing and there is no basis for a conclusion that they did. In the absence of such practice, we have heretofore reached the conclusion that the expression are used in a technical sense;...