dissent.
However, a majority of the Justices are of the view that because of the impact of recent decisions of the Supreme Court of the United States, this case must be remanded to the lower court for further proceedings as herein set forth. Chief Justice Heflin and Justice Lawson concur in the view that this case must be remanded, though adhering to their conclusions that this judgment should be reversed, their conclusions in this regard being set forth in the dissenting opinion of Chief Justice Heflin.
We note that the record does not contain a transcript of the proceedings when the jury venire was qualified. Therefore, we are unable to determine whether the jury which convicted Beecher was constitutionally selected. The appellant does not discuss in brief on appeal any infirmity in the jury qualifying process.
Previously, this court would not ■ normally review the question of the qualifications of the jurors unless an objection was made to the procedure, or unless an allegation was made in a post-conviction proceedings that the procedure was constitutionally irregular and prejudicial, making the imposition of the death penalty impermissible.
In Mathis v. Alabama, 403 U.S. 946, 91 S.Ct. 2278, 29 L.Ed.2d 855, Mathis had been convicted and sentenced to death. His conviction was reviewed by this court and affirmed (280 Ala. 16, 189 So.2d 564 (1966)). The Supreme Court of the United States denied certiorari (386 U.S. 935, 87 S.Ct. 963, 17 L.Ed.2d 807). Mathis thereafter filed a petition for Writ of Error Coram Nobis in the Circuit Court of Coffee County, and although he alleged several grounds of error with regard to the selection of the trial jury, he made no claim of error with regard to the qualification of the jury pertaining to their opinions as to capital punishment. This court affirmed the trial court’s denial of Mathis’ Writ of Error Coram Nobis (283 Ala. 308, 216 So.2d 286 1968)). Mathis then filed a petition for certiorari to the Supreme Court of the United States wherein he claimed for the first time that the jury venire was not qualified properly and in accordance with the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The Supreme Court of the United States granted the Writ and reversed the judgment insofar as it imposed the death sentence. 403 U.S. 946, 91 S.Ct. 2278, 29 L.Ed. 2d 855. Only a memorandum opinion was issued by the United States Supreme Court, citing Witherspoon, supra; Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed. 2d 221; Boulden v. Holman, Warden, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433.
In accordance with the mandate of the Supreme Court of the United States, this court remanded the cause to the lower court *13with instructions to conduct a hearing to determine whether or not those jurors who had stated that they had “fixed opinions” against capital punishment could nevertheless consider the evidence and instructions of the court and return a verdict of guilty although that verdict could result in a death penalty.
As we interpret the action of the Supreme Court of the United States in Mathis, supra, it would appear that implicit therein is that the constitutional validity of a jury imposing the death penalty can be raised for the first time in a petition for certiorari to the Supreme Court of the United States.
Both the original trial record and the record on appeal of the Writ of Error Coram Nobis in the Mathis case were silent as to whether jurors may have been excused because of their opinion about capital punishment. The record in this case, as before stated, is likewise so silent. Therefore, we find ourselves in the position of being aware that the Supreme Court of the United States will not permit the imposition of the death sentence unless an affirmative showing is made in the record that the requirements of Witherspoon have been met. This court has already recognized that in view of the Witherspoon doctrine, trial courts should make certain in capital cases that the court reporter takes full notes from which a transcription can be made of the examination of prospective trial jurors, (Liddell v. State, 287 Ala. 299, 251 So.2d 601, decided August 5, 1971). It would undoubtedly prove futile if at this time we should not notice the absence in this record of an affirmative showing that the jury was properly qualified under Witherspoon as to their opinions in regard to imposing a death sentence.
We conclude that we should not order the sentence of death to be executed until we are satisfied that the jury which imposed the sentence of death was properly and constitutionally selected.
Accordingly, this case is remanded to the Circuit Court of Cherokee County with instructions that a hearing be conducted with the appellant and his attorneys present, and that the court determine first whether any jurors were challenged because of their affirmative answers to a general question as to a fixed opinion against capital punishment, and that if any such jurors were so challenged because of their affirmative answers to a general question as to a fixed opinion about capital punishment, that such jurors be summoned and examined.
This examination of any challenged jurors should be directed toward determining whether or not the challenged jurors would have, in view of their affirmative answers as to having fixed opinions against capital punishment, nevertheless consider the evidence and instructions of the court and return a verdict of guilty although that verdict could result in a death penalty, if they, being the triers of fact were convinced of the guilt of the accused, and that the facts warranted a sentence of death.
The court is further instructed that this hearing be conducted as speedily as is feasible, that a full record be made thereof, a transcript of such record be made, together with the court’s conclusions from the evidence adduced, and that a transcript of these proceedings under the seal of the clerk be promptly forwarded to this court.
The prisoner will remain in custody until discharged by the due process of law.
Affirmed conditionally and remanded for further proceedings.
HEFLIN, C. J., and LAWSON, SIMPSON, HARWOOD, and MADDOX, JJ., concur in the remandment of this case. MERRILL, COLEMAN, BLOOD-WORTH and McCALL, JJ., would affirm without remandment.