*1 and the service the we must certificate divisions to be rendered.” This is interest, point and contrary public crucial sales are difference. I maintain of Motor the there is a serv- to the reasonable intendments of substantial difference Act, duty public Commis- ice to the of the the the Carrier it is between that of appears carrier disapprove. sion to Here it time certifi- from the of his Jeter acquisitions and cate the hearing held no to the Commission and the services carriers, considered, upon, public the quired of evidence the four authorized operate sales and effect of overlapping the certificate divisions the territories carriers, or result the existing on the sales the of of three new certificates neces- and public convenience sales of new the three these certificates the sity or- validity approval the services authorized carriers. The purposes certificates ders created anew for under attack Commission fact, light sale. determined in the of this the doctrine Jackson Johnson majority denial here plicable. an- application principles of the heretofore miscon- nounced this rests Court I would judgments reverse the ception change in the was no that there courts below and hold that the orders service character of motor carrier Railroad are Commissionunder here attack operations public when the available invalid. carrier, authority of Jeter, of the one under certificate, converted were consolidated NORVELL, join WALKER JJ., operations separate carriers of four dissent. this under the Commis- orders the Railroad sales, approving sion divisions Jeter’s which are under attack here. the orders only majority can reach this view previous legal
disregarding the effect of acquisition of all
orders approving Jeter’s the consolidation of
the certificates and single service into one
four certificates four original Jeter, thereby looking JOSEPH, Appellant, Allen James separate services carrier certificates and no inter- thereunder as if there author- the Commission
vening orders of The STATE of in the character of the izing change sep- four services from original authorized point It is at this arate carriers to one. Court Criminal breaks down. view March 1963. ac- majority does hold that the May Rehearing Denied 1963. in- approving the Commission tion rea- sales is divisions and certificate stant against the facts as sonably supported that the Com- holds public interest. require evi- duty
mission public establishing convenience
dence which, 911b, under Article is the
necessity public interest.
essence holding that al- majority is created carriers are there
though additional change “no effected *2 appeal
Appellant’s sole contention jury’s that the is insufficient by the rendered thereon court. charged, separate para-
The indictment graphs, day of that on or about 24th January, pri- committed mary private resi- burglary aof com- night and finally mission of the said offense was he convicted Criminal District Court County De- 20th Jefferson cember, 1957, burglary of the offense of theft, intent to commit an offense like character. appellant’s
Both the guilt issues toas primary offense of and as been convicted like were sub- mitted jury. given
Under the instructions the court in his charge, the the follow- returned ing verdict: jury, find
“We, the defendant Nighttime the offense of Burglary Residence, aof Private we further find that he has heretofore of a felony convicted than less capital.” verdict, Upon such was ren- (on appeal only), & Baldwin Goodwin court, dered guil- adjudging Beaumont, nighttime ty of the offense of burglary repetition fixing Atty., Dist. Ken W. C. Parker punishment at peni- confinement in the DeWitt, Attys., R. Dist. Asst. and John tentiary (99) Sen- Beaumont, and upon pronounced tence was in ac- judgment. cordance with prescribes Ann.P.C., Vernon’s
DICE, Commissioner. nighttime burglary is for The conviction night at .residence at confinement in the residence, convic- term not less than like character an offense of tion of punishment, ninety- V.A.P.C., upon Aft. penitentiary.
nine felony statement of facts of the evidence ad- shall be the No upon accompanies the trial the commission of such offense the rec- affixed to duced ordinary cases. ord. Under this court’s decision Brown conviction of rape assault with intent the trial court was affirmed, though assessed appellant’s punishment. fix authorized to verdict, upon *3 it, As I see clearly Brown v. State is years. penitentiary for wrong and should be overruled rather than followed. agree appel We are unable to sup lant that the verdict was insufficient to 62, provides: Art. it be shown on “If thereon, judgment rendered the trial' of a felony less than that 62, Art. that supra, because it did not find the defendant has been before convicted appellant offense had been convicted of an offense, the same or one of same na- by like character as the statute. ture, punishment or such second verdict, when in The read connection other conviction shall be clearly charge, the indictment and court’s highest which is to the commission affixed n showsthe intention to find in ordinary cases.” offenses guilty offense and highest punishment What is the affixed offense convicted of (Art. 1391, the statute P.C.) for indictment. iof like character private night? at residence The affirmed. is evident a reading is from of the stat- Opinion approved the Court. a Legislature ute has fixed not years term, maximum term of or life WOODLEY, (dissent- Presiding Judge any particular punishment may other which ing)- particular penalty. highest to”be the said They provided simply person have plea C.C.P. committing such offense shall be confined jury must find that guilty, not penitentiary any not less than guilty”, “guilty” “not is either defendant years.” five all assess they “and shall absolutely is not where the same cases years not fixed It follows that a term of 99 penalty.” particular lazv to some “particu- “absolutely law” as the fixed private penalty” burglary of a resi- lar guilty found The a dence enhanced burglary of a residence years pun- burglary, nor is 99 found punishment for which is night, the at “which is to the commission ishment affixed “One in Art. P.C.: [burglary of a resi- such offenses be con- night shall a ordinary night] cases.” penitentiary any fined reasoning Brown State, years that a sentence of 99 also found expected span life in excess of burglary, previously-convicted of defendant, any years greater number of as- indictment, but assessed charged in the significance, may be would be without sessed trial court received the punishment. The demonstrated. ordering entered pellant’s years is the maximum If 99 of 99 a term number of that a any greater necessarily would be exces- assess court’s action and the The trial sive, served year having term is defendant affirming the 99 opinion punishment provided the of- opinion in minimum of this Court ported fense, discharge. be entitled to Ex Tex.Cr.App., would 346 S.W.2d Goss, parte 262 159 Tex.Cr.R. term for second wherein 412; parte Tex.Cr.App., 331 Ex
S.W.2d 320. parole provision laws contain
lating parole has convict who the maximum
served one-fourth sen-
tence. expected span of a defendant can so, why significance.
have If
the maximum is 90
years, years, rather or even years?
than 99 Linden, Salmon, Robert F. State, supra, I would overrule apply does not hold provide a maxi-
where the statute fails as mum MORRISON, Judge. offense. possession equip-
The offense is the ment whiskey, for the manufacture of illicit same nature al- leged $200.00. jail and a fine of
Liquor McVay inspector control testified that on question, company TRUMBLE, Appellant, John E. agents Daniels, alcohol tax Ehret and approached spot where he had thereto- fore whiskey observed saw still and STATE colored man whom he did not know and pellant recognize; whom he that as did soon as the two saw him and the other officers Court of Criminal they both ran. man was The colored over- May 1, 1963. taken, arrested, brought back
still which in operation, but apprehended was not until later morning. Officer Ehret corroborated Mc- Vay’s testimony; however, he was unable identify appellant as one of the two men found at the but still testified that he Hardy caught chased until he White him. Hardy White, charged who was also question, appel- the offense in testified that approached approximately lant him a month inquired arrest of him good put to a in which up location still; whiskey pointed spot out the apprehended where he was later helped up operation put set still which officers, was later found paid by appellant; which services he was