The opinion
WOODLEY, Judge
(dissenting).
The effect of the majority holding is that there is no difference between a life sentence and a sentence of 99 years, yet they reform the life sentence pronounced against the appellant so as to provide for his incarceration for a definite term of 99 years, and hold that to be the maximum punishment under the statute which fixes the punishment for burglary of a private residence at confinement in the penitentiary “for any term not less than 5 years.”
Life imprisonment is a punishment authorized for robbery, but not for robbery when a firearm or other deadly weapon is used. Art. 1408 P.C. It is also a punishment which is authorized for murder, rape, treason, destroying an unborn child, and for a third conviction for sale of narcotics.
Other statutes authorize confinement in the penitentiary for an unlimited term but do not provide for life imprisonment. These include Art. 1190- P.C., attempt to rape; Art. 1162 P.C., assault with intent to rape; and Art. 1391 P.C, burglary of a private residence at night (the primary offense here involved).
All of the above statutes are in effect rewritten by the majority opinion which follows the previous erroneous holdings that 99 years is the maximum term of years which may be assessed for burglary of a private residence at night (Joseph v. State, Tex.Cr.App., 367 S.W.2d 330 ) or assault with intent to rape (Brown v. State, 171 Tex.Cr.R. 167 , 346 S.W.2d 842 .)
Sentences for maximum terms of more than 99 years have been affirmed by this Court.
I would overrule the state’s motion for rehearing and, in doing so, would overrule the Brown and Joseph cases.