dissenting.
*682Any judgment of a trial court in a habeas corpus proceeding from which an appeal is necessary to prevent the illegal execution of the petitioner is an erroneous judgment. At the time of the homicide on April 14, 1953, for which the petitioner was convicted in September 1953 and sentenced to be executed by electrocution on October 30, 1953, it was the well settled law of this State and the uniform practice followed by the trial judges who presided over the circuit courts, to order that an accused who had been convicted of murder and sentenced to death should be placed in the custody of the sheriff of the county where the crime was committed and to be held in the county jail of such county, or of some other county designated by the trial judge, pending the execution of his death sentence. Section 2551, Code of 1942.
In the instant case the trial court in September 1953 sentenced the petitioner to death by electrocution in the manner then provided for by law. We must assume that the petitioner was placed in the county jail in the adjoining county of Coahoma under an order of the trial judge pending his execution, instead of the county jail of Sunflower County where he was tried and convicted. So far as we are advised that order is still in full force and effect. Nevertheless according to the allegations of the petition for the writ of habeas corpus herein, and which have not been denied, the petitioner was taken over his protest and against his will from the jail at Clarksdale in Coahoma County and carried to the state penitentiary in Sunflower County, and there placed in the maximum security cell block, and in the death row thereof, adjacent to the lethal gas chamber, both of which were installed under the provisions of Chapter 220 of the General Laws of 1954, as amended in particulars not here material by a subsequent act of the Extraordinary Session of 1954. '■
Section 4 of Chapter 220, Laws of 1954, 'provided among other things that “in all cases where sentence of *683death was imposed prior to the passage of this Act, the one so sentenced shall have the choice of receiving the death penalty under this Act or as provided by law prior to the date of the passage of this Act; provided, * * *, such choice is expressed to the sheriff of the county where the sentence was imposed at least five days before the date of execution, and in case such option is not so exercised within such time, then the condemned, will be put to death under the provisions of the state law which was in effect prior to the passage of this Act.” No contention is made by the State that the petitioner is in error in contending that he has not at any time since his conviction and the affirmance thereof by this Court ever exercised the option to come under this lethal gas chamber act as provided for therein. As I understand, all of the eight judges who are participating in this decision are in agreement, there being no basis for any disagreement on the point, that the petitioner can not be executed in the lethal gas chamber under the provisions of Chapter 220, G-eneral Laws of 1954, in the absence of an exercise of his option to come under the provisions of such Act.
However, except for the filing of this petition for a writ of habeas corpus, there can be no denial that the penal authorities would execute the petitioner in the said lethal gas chamber on February 9, 1956. Under the “death by electrocution act” there was no authority for the electrocution of a condemned man to take place in the state penitentiary. And there is still no such authority. Under that Act the State had employed an executioner who received the sum of $100.00 for each execution and who carried the portable electric chair to whatever county the condemned man was alleged to have committed his crime, and there executed him. Whether the services of a trained and experienced executioner in putting men to death in an electric chair can be procured in time to execute the petitioner by electrocution at the county seat *684of Sunflower County in Indianola, Mississippi, on February 9, 1956,1 do not know. In my opinion the affirmance of the judgment of the trial court appealed from in this habeas corpus proceeding, and without any modification thereof, means that we are making it possible for his execution in whatever unskillful and haphazard manner that may be devised by whoever may be the local sheriff.
But transcending in importance the considerations hereinbefore mentioned is the fact that the petitioner has been, is being and will continue to be until the final disposition of this case, subjected to far greater punishment in the maximum security cell block, and in death row thereof, than would ordinarily have been inflicted upon him pending his execution had he remained in the county jail to which he had been assigned, and in which he had the lawful right to remain, under the law in force at the time of his alleged crime, his trial and conviction, and at the date fixed by the trial judge for his execution for October 30, 1953, and pending further appeals. Such was expressly so held in the case of Ex Parte Medley, 134 U. S. 160, 33 L. ed. 835, which has never been overruled but has been repeatedly cited by the Supreme Court of the United States as authority on the question at issue.
When we assume, as we are doing, that the allegations of the petition are true, since they were undenied and the offer to make proof in support thereof was refused, on the ground that the trial court was of the opinion that the allegations were insufficient to entitled the petitioner to relief, then a mere reading of the petition will disclose that the ordeal to which this petitioner has been subjected far exceeds the “solitary confinement” dealt with by the Supreme Court of the United States in the Medley case. There the Court reviewed the history of solitary confinement in England and in this country, its likelihood to produce insanity or result *685in suicide, and expressly held that it was a greater punishment under the act of Colorado then being challenged as an ex post facto law, than the petitioner would have suffered had he remained in the county jail as provided for under the law in force at the time of his trial and conviction. In the Medley case the Court said, among other things, that:
“The prisoner was to be kept in the county jail under the control of the sheriff of the county, who was the officer charged with the execution of the sentence of the court. Solitary confinement was neither authorized by the former statute, nor was its practice in use in regard to prisoners awaiting the punishment of death.” * * *
“Instead of confinement in the ordinary county prison of the place where he and his friends reside; where they may under the control of the sheriff, see Mm and visit him; where the sheriff and Ms attendants must see him; where his religious adviser and his legal counsel may often visit him without any hindrance of law bn the subject, the convict is transferred to a place where imprisonment always implies disgrace, and wMch, as tMs court has judicially decided in Ex Parte Wilson, 114 U. S. 417 (29:89); Mackin v. United States, 117 U. S. 348 (29:909); Parkinson v. United States, 121 U. S. 281 (30:959), and United States v. De Walt, 128 U. S. 393 (32:485), is itself an infamous punishment, and is there to be kept in ‘solitary confinement’, the primary meaning of which phrase we have already explained. * * *
“The term ex post facto law, as found in the provision of the Constitution of the United States, to wit, that ‘no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts’, has been held to apply to criminal laws alone, and has been often the subject of construction in this court. Without making extracts from these decisions, it may be said that any law which was passed after the commission of the offense for wMch the party is being tried *686is an ex post facto law, when it inflicts a greater punishment than the law annexed to the crime at the time it was committed (Calder v. Bull, 3 U. S. 3 Dall. 386, 390 (1:648, 649); Kring v. Missouri, 107 U. S. 221 (27:506); Fletcher v. Peck, 10 U. S. 6 Cranch 87 (3:162); or which alters the situation of the accused to his disadvantage ; and that no one can he criminally punished in ■this country except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed, or by some law passed 'afterwards by which the punishment is not increased.”
It has been the well settled rule in this state that when the constitutionality of a statute is challenged by a litigant in either a civil or criminal case, the first inquiry of the court is whether or not the statute is unconstitutional as being applied to such litigant. The Acts of 1954 are perhaps constitutional as applied to those committing crimes and being sentenced to death after the passage of those statutes, but in my opinion under the principle settled in the Medley case the Acts of 1954 are ex post facto laws as applied to this petitioner in the absence of of an election by him to come under the provision of such acts and are therefore violative of the Constitution of the United States.
But it was suggested in conference, though not mentioned in this habeas corpus proceeding except in one of the briefs of counsel, that the defendant superintendent of the state penitentiary had the right to hold the prisoner in custody at the state penitentiary during the remaining 27 years of a 30 year sentence that he was serving at the time that he is alleged to have committed the crime for which he has been sentenced to death. I am unable to agree that under that sentence they have the right to keep him in death row and subject him to the ' ordeal disclosed by the admitted allegations of the petition herein. In this case the petitioner was not taken from the jail at Clarksdale and carried to the peniten*687tiary for the purpose of serving ont the 30 year sentence but was carried to the state penitentiary for the purpose of being executed.
Moreover, when the penal authorities aided and assisted in the procurement of the indictment and conviction in the circuit court of Sunflower County of this prisoner who was serving a term of years for an offense less than capital, they were without authority after his conviction and sentence to death to deny the jurisdiction of the state courts to determine where he should be confined pending the final disposition of his conviction for the capital offense. Then, too, the 30 year sentence of imprisonment has not been interposed by the defendants as a defense in an answer to the petition for a writ of habeas corpus herein. It is not to be supposed that the penal authorities placed the petitioner in death row in the maximum security cell block for any reason except what they conceived to be their right and authority under the provision of the Acts of 1954 hereinbefore mentioned, and for the sole purpose to await execution, and which are in my opinion, and with great deference, ex post facto laws as applied to this petitioner.
I think that the provision of Section 4, Chapter 220, Laws of 1954, giving to a condemned man who was tried, convicted and sentenced prior to the passage thereof, until five days prior to the execution within which to exercise his option to come under the provisions of the Act, was for the primary purpose of allowing sufficient time for a man who was sentenced to death prior to the passage of the Act to be transported from the county jail of the county of bis conviction, however far removed from the state penitentiary, and placing him in the death row in time for his execution in the lethal gas chamber; that the legislature did not intend that an accused who had been convicted and sentenced to death prior to the Act, should come under the provisions thereof by estoppel, since the legislature clearly provided the *688precise manner in which, the option to come under the provision of the Act could be exercised, and the legislature thereby enabled a prisoner to remain in the county jail of the county where he was convicted or in some other county jail designated by the trial judge, where he could avoid being subjected to the ordeal set forth in the allegations of this petition — a punishment in the death row and for a long, duration, not provided for under the laws in force at the time of his trial, conviction and sentence. I think that the question of whether or not execution in a lethal gas chamber is more humane than execution by electrocution, is not before us. This petition deals with the greater punishment to which the prisoner has been and is being subjected pending his execution, as was true in the Medley case.
My great respect and personal esteem for the author of the controlling opinion in a case which has doubtless given him much concern, has produced reluctance on my part to write this dissent, but after thinking over the question involved since the conference on yesterday I am unable to concur in the affirmance of the judgment appealed from, and without any modification thereof, and feel it my duty to so state. I respectfully dissent from the majority view.