(concurring in part and dissenting in part) :
I agree entirely with the conclusion of the majority in answer to Question No. 1 that, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court of the United States has held in effect that 11 Del.C. § 3901 (the so-called Mercy Statute) is unconstitutional. This ruling is, of course, binding upon us.
I also agree with the conclusion of the majority in answer to Question No. 2 that 11 Del.C. § 571 (the Murder Statute) is severable from 11 Del.C. § 3901 and, therefore, is unaffected by Furman v. Georgia, supra. In addition, I concur with the majority’s holding that the death penalty per se is not cruel and unusual. 11 Del.C. § 571, therefore, continues to stand as the law of this State and requires the imposition of a mandatory death penalty upon conviction of murder in the first degree.
I disagree, however, with the majority’s conclusion that 11 Del.C. § 571 may not be applied retroactively by the courts of this State. I question whether this phase of Question No. 2 is within the framework of the actual question certified; nonetheless, I will consider this aspect since the majority is of the opinion that it is.
The conclusion is based upon the prohibition of ex post facto laws by Art. 1, §§ 9 and 10 of the Federal Constitution which in terms forbid only the enactment of such laws. However, as a result of Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), the prohibition is now apparently extended to include judicial construction of a criminal statute which has the effect of enlarging a previously prescribed penalty.
I do not think that this. Court by this Opinion has made any such construction. We have held that the Murder Statute and the Mercy Statute are severable and stand independently when subjected to constitutional attack. The Supreme Court of the United States — not this Court — has held that the Mercy Statute is unconstitutional. We, of course, are bound by this decision, but we have not made it. Hence, it seems to me that, under no circumstances, can it be said that this Court has enlarged the penalty for first degree murder. Accordingly, I feel that Bouie is inapplicable to the case at bar. In this connection, I note that the mandatory sentence of death has always been the penalty for murder in this State, except for a short period of time.
It seems readily apparent that the Supreme Court of the United States did not consider that Delaware, unlike the other States, had two separate and independent statutes relating to this field — one providing the penalty and the other providing for mercy under some circumstances. The latter has been held unconstitutional since, on *771its face, it was susceptible to capricious application, but this holding does not affect in any way our Penalty Statute. It continues to stand as it always has.
In my opinion, therefore, 11 Del.C. § 571 prescribes a mandatory sentence of death, upon conviction of murder in the first degree with respect to all such indictments pending, irrespective of the dates of the crimes on the indictments.
SUPPLEMENTAL OPINION
In Part VIII of the foregoing Opinion, we reserved for further briefs and argument the identification of the authority of the Superior Court under which sentence may be imposed upon a conviction of first degree murder committed prior to November 1, 1972, for which the death penalty may not be imposed. We have now had the benefit of additional assistance of counsel upon that question.
Both the Attorney General and the Public Defender agree that the penalty in such case must be mandatory life imprisonment. We so hold.
Manifestly, as a matter of either legislative intent, legal concept, or simple reasonableness, a greater crime must be deemed to carry a penalty at least as severe as that prescribed for a lesser-included-offense. The statutory penalty for murder in the second degree is mandatory life imprisonment. 11 Del.C. § 572. The penalty for murder in the first degree may be no less.
The question remains as to the source of the power and authority of the Superior Court to impose a mandatory life sentence for first degree murder.
As this Court has now ruled, the mandatory death penalty of the First Degree Statute, though held to be constitutional prospectively, may not be constitutionally applied retrospectively to any offense committed prior to November 1, 1972. As to any such offense, therefore, the conclusion is impelled that the First Degree Statute, § 571, lacks a constitutional penalty provision.
To fill that void, we look to the immediate statutory predecessor of § 571, which was the 1958 Statute abolishing capital punishment and prescribing life imprisonment for murder in the first degree. 51 Del.L. Ch. 347. The penalty portion of § 571 having been found unconstitutional for certain limited purposes, the next preceding Statute revives and becomes controlling for those purposes. The rationale and the result are the same, we think, as in other types of cases in which a repealer statute is found to be invalid, thus restoring its progenitor. See Clark v. State, Del.Supr., 287 A.2d 660 (1972); State ex rel. James v. Schorr, Del.Supr., 6 Terry 18, 65 A.2d 810 (1949); Abrahams v. Superior Court, Del.Supr., 11 Terry 394, 131 A.2d 662 (1957).
Accordingly, for the guidance of the Superior Court in this case and others in like retroactive category, we express the opinion that the penalty to be imposed, upon conviction of the .charge of first degree murder, is mandatory life imprisonment; and that the authority therefor is 51 Del.L. Ch. 347.