*1 holdings regarding the de proceeds benture and the the from stock, excluding shares of earned gain shares, brought were for forward approve review. We judgment these items improperly were allocated income, they the trustees must corpus be allocated the trust. However, significance we attach “full,” “absolute,” absence of such words or dis describing “uncontrollable” in cretionary powers trustees. application for writ error is re- fused, no reversible error.
SMITH, sitting. J., not parte Melvin Carl DAVIS. No. 39935. Cross, Oppen- Byrd, Lang, Ladon & Antonio, Appeals heimer, Boldrick, Jr., Neill San Court Criminal of Texas. petitioners. 9, 1966. Nov. Gen., Arthur Waggoner Carr, Atty. Rehearing On Feb. J. Gen., Attys. Sandlin, Longoria, David Asst.
Austin, respondents.
PER CURIAM. opinion, Appeals its
The Court of Civil affirmed
reported in 408 S.W.2d held that court which of the
judgment trial decedent, the will of
the trustees under Thorman, improperly had Elizabeth
Lulu Cor- Finance to income Colonial
allocated proceeds the net
poration debenture of William shares One the sale of 117
from properly allocated had Fund but
Street gain rise value or
income the trust. inception of since
117 shares holding by Civil shares gain
regarding review. this Court
before *2 True, position. case a life sen- imposed
tence was identical offense. case, This was written Woodley dissenting opinion and a by Presiding Judge Morrison. The writ *3 corpus of habeas was relator granted and discharged. holding was ordered The court this at time in the Rolen case imprisonment was that “Life of- for such is not is by fense authorized statute and excessive.” Relator more than had served punishment provided by the minimum law charged for the offense for which he was convicted, pun- and as to the excessive ishment, judgment was held void and relator held to was be entitled to his dis- charge. Webb, Tex.Cr.App.,
Ex Parte 374 S.W. Court, only this 2d is the case reach one, prior been to this since this writer Court, petitioner a a member of in which discharge an sought his under the rule Rolen, by supra. this nounced Court in agreed While the writer with Wood- Davis, pro Melvin Carl se. case, opinion supra, he ley’s in the Webb Austin, Douglas, Atty., Leon B. doing, State’s is now convinced that he erred in so for the State. does and now confesses The writer error. agree the holdings
not with of this Court Rolen, supra. the case Cases similar to OPINION Erwin, Parte Tex.Cr.R. at bar are: Ex 226; Goss, 159 504, 170 Parte Ex McDonald, judge. 412; Ex Parte Tex.Cr.R. 262 S.W.2d original application an for habeas This is 336; O’Dare, 146Tex.Cr.R. 172S.W.2d corpus by who is confined Wheat, S. Parte Ex Tex.Cr.R. Department under Texas of Corrections 344; State, 146 Tex.Cr. Daugherty v. W.2d the Dis- sentence in 11692-A of Cause No. Whitten, Parte R. County, trict Court Wichita Texas. 588; Ex Geisling, Tex.Cr.App., Parte charged rela- The indictment in said cause and Cuellar intent the offense tor with of assault believes The writer S.W.2d 250. feels plea of rape judgment, upon disposition case that the correct of this guilty court, the sentence before Bailey controlled the case of v. United assessed reflect that the was States, 451, 452, 74 F.2d wherein the in the for life. confinement had before Tenth Circuit provided by as is here practically question it identical the offense of assault with intent presented. There court said: than any “for not less Congress did not “It is our two.” Art. Vernon’s Ann.P.C. phrase years’ in use the ‘term of Rolen, ap- technical upon relies sense attributable to when Relator being of plied to Life to sustain estate lands. 294 life sen- regarding a his views certain, expressed being duration and death limited as assault an offense such tence for cer- definite and for life is a sentence rape; rape; attempt to to a sentence tain. It is tantamount residence, robbery with years greater than a definite term firearms, statute does where sen- possible span person punishment. life sentence as terms tenced.” i rule today new announce contained language identical uni- directly contrary to the of law which is Presid- foregoing holding was used period this Court over decisions of form in Ex ing Judge Morrison in his dissent upon twenty years, and do so than more Goss, supra. authority very decision which school is committed to *4 The writer considered, declined discussed and in the expressed by this Court thought of State, 146 Tex.Cr.R. Daugherty in v. follow 167, State, Tex.Cr.R. 171 cases of Brown v. 303, 493, in 1943. decided 174 S.W.2d State, 842, Tex. Joseph v. 346 S.W.2d Woodley 330. Cr.App., 367 S.W.2d reach conclusion that a life sen- To he and while Joseph in the case dissented may imposed punishment for tence be as case, he participate in the Brown did not rape, intent to offense of assault with the dis express disagreement did over necessary majority find it to overrule in position case in his dissent of the Brown Graves, opinions by Judges written Haw- Joseph. writer, kins, Beauchamp, Davidson and the Erwin, 145 the earliest is Parte of which Ex may readily apparent from As be 504, 226, decided Tex.Cr.R. 170 S.W.2d cases, foregoing discussion of the various 1943, being Ex and the most recent a, difference we divided court and have a Webb, Tex.Cr.App., Parte 374 S.W.2d writer, Presid opinion. whom concurs, that the ing Judge feels Morrison their not overlooked majority have Ex upon by petitioner, line of cases relied a punishment for second holding as to the 504, Erwin, Parte 145 Tex.Cr.R. 170 S.W. say they now the offense conviction for 226; O’Dare, 2d Ex Parte 146 Tex.Cr.R. by confine- ordinary cases punishable in Wheat, 162, 336; 146 Ex Parte 172 S.W.2d for life. penitentiary ment in the 344; 171, Daugherty 172 S.W.2d applicability to the views as The writer’s State, 303, v. 146 174 S.W.2d in his out cases is set 62 P.C. such Art. 493; 169, Whitten, Ex Parte 151 Tex.Cr.R. State, Tex. dissenting opinions Joseph v. 588; State, 205 151 Tex. S.W.2d Cuellar v. 330; Madeley v. Cr.App., S.W.2d 176, 250; Cr.R. Ex Parte Geis S.W.2d 187; and Tex.Cr.App., Sellars 838; ling, Tex.Cr.App., Ex Tex.Cr.App., 401 S.W.2d v. Goss, Parte 412; Rolen, prepared to hold majority is Unless Foight, Ex 165 Tex. S.W.2d Parte longer highest that a life sentence is Parte Cr.R. 132 and Ex S.W.2d a may be assessed for Webb, Tex.Cr.App., 374 should them- capital, they find felony less than overruled, they accordingly all be are life saying that a position selves overruled. may assessed for assault sentence be ordinary but on rape in cases said, From what has been is clear subsequent conviction second or other petitioner should relief be denied the fixes a definite such offense Art. P.C. sought. It is so ordered. years. of 99
WOODLEY, Judge (dissenting). ap- opinion and to the To of statutes plication new construction opinions prepared by In him of the which uphold a retroactively to overruled, fully announced therein today are writer sentence for In Article assault with intent to addition to V.A. pronounced 2, 1962, February respect- (assault rape) I P.C. with intent to fully portion robbery dissent. above mentioned of the
statute,
authorizing
statutes
confine
other
an
ment
unlimited
OPINION ON REHEARING
life im
term but
do not
V.A.P.C.,
prisonment include Article
ONION, Judge.
V.A.P.C.,
attempt
rape;
Article
explosives,
Being
opin
previous
convinced that the
V.A.P.C., burglary
residence
many
ion which denied relief and overruled
night.
be
It should
observed that a stat
decisions
Court under which
minimum,
not a
ute which affixes a
but
wrong,
judges
is entitled to relief was
four
maximum,
term
present
five
Court directed
judge
Myers
valid statute.
Tex.Cr.
that the
be set for
on mo
cause
submission
R.
51 62, V.A.P.C., provides: S.W.2d Goss, 1953, Tex.Cr.R. and Ex Parte felony shown on trial “If it be imprisonment 235, 262 S.W.2d capital the defendant less than years and is life is not for a term of- same before convicted of the been pro- only so authorized when statute nature, fense, or one of the same vides.” sub- or other punishment on such second highest sequent conviction shall be Ro authority Relator cites as affixed to commission which is len, ordinary cases.” such offenses imposed for the There a sentence was rape. In offense of assault with intent to This has been held relator, discharging the the court held offense, merely to authorize create no but imprisonment for is not “Life offense such sub increased to be affixed authorized statute and is excessive.” State, 172 sequent Beyer convictions. v. Rolen, supra, is in accord with 436; Brown v. Tex.Cr.R. S.W.2d period holding uniform of this over a Tex.Cr.R. twenty-three years sentence that a life 450, 5 S. Williams was not authorized statutes under such reformatory provisions W.2d 514. are provided years. no maximum term of nature, State, 134 Tex.Cr.R. Childress v. strictly must be prior case construed. Garcia v. 9, 1966, bar handed down held November that “life” term was included phrase “any than less Madeley, Joseph, The decisions two.” up- Sellars, supra, based seem to have been reasoning forth in Brown v. set *6 up part in prior This was based supra. There the was State, conviction Cir., States, F. Bailey v. United 10 74 primary the of assault instant or offense 451, part 2d upon and in the “school of rape punishment en- with intent to thought” expressed by Joseph Court in this 62, provisions Article hanced under the of State, Tex.Cr.App., v. and 330 supra, years trial was set 99 the court. at State, 167, 346 S. Brown v. State, 842, followed W.2d and in Sellars v. hold- The court affirmed the conviction 835; Madeley Tex.Cr.App., 401 v. S.W.2d duty to ing that it was the trial court’s as- State, Tex.Cr.App., Cf. 388 187. S.W.2d sess the maximum number years of State, Clark Tex.Cr.App., ordinary v. jury could assess in assault an rape case, only if and that 886. Legislature provided found the had decision, Bailey that We do not feel the punishment maximum be would it author- supra, applicable very co- for the same ized reverse. to gent de- reasons that Court in 1943 decision Brown The rationale the Daugherty clined to follow that decision in observed that to be that the court seems State, 303, v. 174 S.W.2d many appealed wherein the cases had been rape punishment for assault with intent Brown, Madeley years, Joseph, in The decisions been assessed at term of 99 had Sellars, supra, and are effect the and ad- Legislature the had met and the punish- journed amending trial court is authorized to assess without Article V.A.P.C., V.A.P.C., prescribing penalty ment under Article at 99 for as- years pro- Legislature not when sault with intent at confinement in penalty “any years instant vided a maximum for the term of not two”, primary or offense. less than that this warranted despite the trial was there- than a conclusion that court second offender purpose fore the clear Article authorized to assess the V.A.P.C. ninety-nine provisions years under the To arrive at the conclusion that the Court V.A.P.C. Joseph, Sellars, did in Brown, Madeley and supra, is to read The Court further reasoned that while into the statutes involved ninety-nine years language Legislature fit greater term of than did not see employ years ordinary engage judicial as- and to in legislation. could be assessed in an rape case, sault with intent to a sentence of ninety-nine years ex- in excess of the We cannot substitute judg our pected any span any defendant and ment for the judgment discretion greater number of assessed would Legislature. Where the is clear significance.
without
fallacy
unambiguous
Legislature
must be
ap-
reasoning
case is
such
expressed,
understood to mean what it has
up
parent
pointed
on its face and is further
and it is not for the courts to add or sub
Madeley
Joseph,
dissents in
and Sel-
tract from such a statute.
lars,
Review,
supra. See 1 Houston Law
Therefore we hold that Article
apply
the statute
V.A.P.C. does
where
apparently
The Court
overlooked the his
term a life
fails to
a maximum
or
tory
dealing
of the statute
with the offense
primary of
term as
for the
rape.
The statute
assault with intent to
conflict,
any
Sel
fense. To the extent of
formerly
years.
a maximum
had
835;
State, Tex.Cr.App.,
lars v.
1879, Tex.Pen.Code,
(Tex.Sess.Laws,
title
Madeley
State, Tex.Cr.App.,
v.
388 S.W.
XV,
503). The maximum term
3.,
Ch. Art.
187; Joseph
Tex.Cr.App.,
2d
v.
was eliminated in
(Tex.Sess.Laws,
Tex.
Brown v.
Legislature
1)
Ch.
Sec.
hereby
Cr.R.
842 are
over
which re-enacted the statute
ruled.
again
subsequent
to the decision
Myers
103 S.W.
fully cognizant
We are
859, holding that
was valid with
the statute
fact
holding
provisions
under this
punishment.
out a
Tar
maximum
See also
62, V.A.P.C.,
inap
of Article
are rendered
*7
Staate,
ver v.
108 Tex.Cr.R.
plicable to such common offenses as as
439.
attempt
rape,
sault with intent
rape,
to
to
night
residence at
support for the
not reflect
Research does
however,
burglary by explosives,
other
many cases have
court’s statement
conclusion
logical
language
seems
from the
ninety-nine year
appealed involving
been
used
in
Legislature
in the statutes
with
the offense
assault
convictions for
any prior
volved. We
con
observe
has been
rape. Only
intent
one such case
viction
Article
otherwise available under
found.
Wells
62, V.A.P.C.,
certainly
would
be admissible
it
background
such a
es it was minimum offense, fixing maximum or but a maximum either no mum first for the punishment not the concern of this Court. making possible it for the second conviction penalties for violation greater The determination of to receive a for a first offender the sound dis- the Penal Code within parte BALAS, Ex Albert C. Jr. Legislature. cretion of No. 40147. been It is clear from what has Court of Criminal of Texas. V.A. to construe said rape) intent and other (assault Feb. P.C. authorizing
similar statutes confinement penitentiary any term of with prescribing penalty in
out a maximum
cluding the term life render all would authorizing
statutes confinement “any “for life” or for
years” redundant. pry
Such a construction would the lid off box, i.e.,
of Pandora’s would ver- mean a jury
dict assessing life as proper though
would be even inconsistent express penalty provisions
with the charge involved
court. Cf. Belton v.
436,
It having been shown cer Department
tificate of the Texas of Cor
rections that relator has credit in excess punishment provided minimum
the offense of assault intent rape,
he is to discharge. entitled Ro Parte
len, supra; Goss, Ex Parte Erwin, remains convinced Morrison Balas, Jr., pro Albert C. se. in Ex Parte the soundness of his dissents Rolen, supra; Ex Goss, supra; Ex Parte Austin, Atty., Douglas, Leon State’s B. Webb, Parte Foight, supra, and Ex for the State. supra. He convinced of also remains opinions in Sel correctness OPINION State, supra; Madeley v. lars v. Joseph v. State, supra, and
supra; Brown v. ONION, Judge. agree with this supra, and does application opinion rehearing. original on for ha- This is an who confined in corpus by beas sought the relief is set denying The order Department of the Texas Corrections. aside, listed the or- and the authorities copy relator at- judgment, a re- being overruled are iginal application indicates pro se tached to affirmed. September 26, be- plead guilty he the offense of corpus is fore petition of habeas writ night, in the 54th residence granted, and relator is ordered released County and of McLennan under life District Court further from confinement confinement was assessed a sentence.