(dissenting).
I dissent. The author of the main opinion originally said in an opinion that is now changed, the opposite of what is now espoused, when he said:
“However, in the adoption of the new code, the legislature has dealt with this problem in Section 76-1-103(2) by providing:
Any offense committed prior to the effective date of this code shall be governed by the law, statutory and non-statutory, existing at the time of commission thereof, except that a defense or limitation on punishment available under this code shall be available to any defendant tried or retried after the effective date.
“This defendant had been tried and convicted in August 1971 for an offense committed prior to that time. He has been neither ‘tried nor retried’ after the effective date of the new code which was July I, 1973. Thus, according to the statute just quoted, his ‘offense committed prior to the effective date of this code shall be governed by the law . . . existing at the time of the commission thereof . . .,’ and he was properly sentenced thereunder.”
I concurred in- the language quoted above, which better could not have been enunciated, and I think it is, always has been, and should be the law in cases like this, — so,—what must I do but dissent in this case, — which I do do in consonance with my convictions,- — not knowing about or the reason for the turnabout, and I suppose should care less, if the majority of this court exspouses it.
CALLISTER, C. J., concurs in the views expressed in the dissenting opinion of HENRIOD, J.