I dissent from that portion of the opinion wherein the punishment given the jury in the charge was not less than five nor more than ten years. The opinion concedes this to be error. The punishment given by the court in charge was the punishment in vogue prior to the act of the Twenty-fifth Legislature (Acts 1897, p. 146). That act changed the punishment from not less than five nor more than ten years, to not less than two nor more than ten years in case of this character of perjury. The majority, however, affirmed the judgment because appellant did not reserve a bill of exceptions, either during the trial or in motion for new trial to this error; and they have covered this error with the provisions of article 723, Code of Criminal Procedure, and cite Barnett v. State, 42 Tex.Crim. Rep.; Pena v. State, 38 Tex.Crim. Rep.; McGee v. State, 43 S.W. Rep., 512; Abbott v. State, 57 S.W. Rep., 97; Spears v. State, 56 S.W. Rep., 347. There are other cases in line with those cited by the court. Some of these cases show my dissent on the construction placed on article 723 by the majority in regard to the question presented in those cases, and it might seem a work of supererogation to again bring this matter up in a dissenting opinion. Had the matter rested where those decisions placed it, I would not be heard again to dissent. Article 723 applied as my brethren held in the former decisions to matters of procedure, they asserting it was a reasonable rule of procedure and on that ground justified their opinion sustaining that act of the Legislature. But now another step is taken in advance of procedure; the legislative department of government is invaded and a punishment provided by the trial court and the majority of this court on appeal, which the Legislature had expressly repealed. Our code provides, where a new punishment has been substituted for the old punishment by the legislative department, the party accused of crime must have the option to be tried under either if the facts brought it so that either punishment would apply; and in the absence of his exercising that option, the court would give the milder punishment. But here we have an act repealed in 1897, and a milder punishment substituted, and inflicted upon an accused in 1904, practically seven years after the Legislature had repealed that punishment. Heretofore my brethren had *Page 334 construed article 723 to be a rule of procedure in applying the existing law to the facts of the case, holding where that had not been properly done, defendant would be helpless to take advantage of errors unless he excepted in one of the modes pointed out by that article. This referred simply to the application of the law to the facts. It has never been considered a rule of procedure anywhere so far as I am aware, that fixing the punishment was a rule of procedure; and under our codes, penal and procedure, nor under our Constitution has it ever been held that the court could define an offense or fix a punishment. That is purely and exclusively legislation. Article 2 of the Constitution expressly prohibits the legislative, judicial and executive departments of the government from encroaching one upon the other; but here, without even the color of authority, a punishment has been prescribed by a court which the Legislature years ago expressly repealed. There has been no punishment since in this State, except that provided by the act of 1897, which is not less than two nor more than ten years; but we have a man confined under a punishment which has no existence in fact, being not less than five nor more than ten years. Neither has this court nor the trial court any authority whatever to fix a punishment, any more than they can define an offense; and it has no more authority to do either than the Legislature has the right to affirm or reverse the judgment in the Court of Criminal Appeals or the Supreme Court. I therefore enter my most earnest dissent.
[Motion for rehearing overruled without written opinion. — Reporter.]