The opinion
WOODLEY, Judge
(concurring opinion on Appellant’s Second Motion for Rehearing).
The contention of the appellant now sustained by the majority was advanced in connection with the claim that the trial court erred in failing to affirmatively adjudicate the issue of the voluntary nature of appellant’s confession prior to its introduction in evidence before the jury.
There is no merit in either claim of error.
As I understand the record, appellant was seeking to have witnesses summoned that he might interrogate them before the court in the jury’s absence and learn from them whether or not they could furnish any fact showing or tending to show that the statement was not voluntarily made in accordance with the statute.
The majority confuse interrogation for the purpose of developing evidence at the trial and interrogation in an effort to discover evidence. No evidence contrary to the witnesses’ testimony that it was voluntarily made was introduced and neither appellant nor his counsel had any such evidence to offer.
I concur in the reversal of this conviction for the reason pointed out in my dissent to the granting of the State’s motion for rehearing.
Appellant’s second motion for rehearing directs attention to the portion of the opinion in Brown v. State, 171 Tex.Cr.R. 167 , 346 S.W.2d 842 , wherein this Court said:
“Only if we should hold that the Legislature has provided no maximum punishment for the offense of assault with intent to rape would we be authorized to reverse.”
I would also direct attention to the following quotation from the opinion in Brown v. State:
“While it may be that a term of years greater than 99 could be assessed by a jury in an ordinary assault with intent to rape case, a sentence of 99 years is in excess of the expected life span of any defendant, and any greater number of years assessed would be without significance.”
Appellant’s second motion for rehearing should be granted and the judgment of conviction reversed because no definite punishment is fixed by law and the jury assessed none for the offense charged.