
    Ex parte Elzie Earl SPARKS.
    No. 36551.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1963.
    
      Elzie Earl Sparks, in pro. per.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a habeas corpus proceeding filed originally in this Court wherein the petitioner attacks the judgment of conviction he is serving in the Texas Department of Corrections.

The indictment was in two counts, the first alleging rape and the second, assault with intent to rape.

The judgment upon which sentence was pronounced against petitioner recites that a jury was waived and that the petitioner pleaded guilty to the charge contained in the indictment. It adjudged the defendant “guilty of the offense of Rape, Assault With Intent to Rape as confessed by the defendant” and adjudged that he be punished by confinement in the penitentiary “for a term of not less than S nor more than 35 years.”

We observe that though there are recitations in the record which tend to show that appellant was found guilty of assault with intent to rape, the minimum punishment shown in the judgment was that provided for rape but not for assault with intent to rape.

The present Judge of the District Court of San Augustine County, where the petitioner was tried, has certified that the recitations of the judgment are correct and there are no clerical errors in the copy transmitted to this Court.

Rape being a capital offense, the trial court was without jurisdiction to try the petitioner for such offense without a jury. The judgment of conviction is void also because no definite punishment was assessed. Kemp v. State, 159 Tex.Cr.R. 110, 261 S.W.2d 573; Ex parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286; Ex Parte Padgett, 161 Tex.Cr.R. 498, 278 S.W.2d 865; Ex parte East, 154 Tex.Cr.R. 123, 225 S.W.2d 833.

It is ordered that petitioner be relieved from further confinement in the penitentiary under said conviction and that he be delivered by the penitentiary authorities to the Sheriff of San Augustine County to answer in the District Court of such county to the indictment which was originally returned against him in said Cause No. 5480.  