The opinion
WOODLEY, Judge
(dissenting).
The writer is in full accord with that portion of appellant’s brief wherein his able counsel contends that the majority opinion in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330 , and the opinion in Brown v. State, 171 Tex.Cr.R. 167 , 346 S.W.2d 842 , “are so farfetched and so lacking in logic, that this Honorable Court should immediately correct the erroneous rule established by said decisions” and “said decisions constitute legislation by this Honorable Court and we can all agree that this Honorable Court is a judicial body, not a legislative body.”
*837 If the punishment for a second or subsequent burglary of a private residence at night is “absolutely fixed by law to some particular penalty,” so as to render it unnecessary under Art. 693 C.C.P. that the jury assess the punishment, the law “absolutely fixing” such punishment at 99 years was not an act of the legislature but an incorrect decision of this Court.
If the majority insist upon reaffirming the rule in Brown v. State, they should no longer delay relief to those serving longer terms than 99 years which, under their rule, are excessive.
The writer’s views are expressed in his dissents in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330 , and Madeley v. State, Tex.Cr. App., 388 S.W.2d 187 , cited in the majority opinion.
I respectfully dissent.