(dissenting).
I dissent, as I did in Belt v. Turner, 25 Utah 2d 230, 479 P.2d 791 (1971) and on the rehearing of that case, 25 Utah 2d 380, 483 P.2d 425 (1971) for reasons stated therein, and in doing so, make the following observations anent the majority opinion in the rehearing and by pointing up a bit of inconsistency enunciated in the main opinion of the instant case.
In Mr. Justice Ellett’s opinion at the rehearing he quotes Vol. 21, Sec. 577, Am. Jur.2d, Criminal Law, which has to do with legislative power to prescribe penalties and is not germane to the issue in that or the instant case. That section has nothing to do with difference in penalty for an offense imposable at the time of commission and that which might exist at time of sentence.
Section 578 also is set forth verbatim in part. There is nothing in the quoted language stating anything about “time of sentencing.” I respectfully suggest that “time of judgment” is not synonymous with such phrase, but may be with “time of conviction,” which in both State v. Miller, 24 Utah 2d 1, 464 P.2d 844 (1970) and Belt v. Turner, supra, was, in my opinion, the “time each was found guilty” in the lower court. If this construction is not employed, the anomaly pointed out in my dissent to the effect that where Belt, who committed an identical offense, under an identical statute, at an identical time when an identical penalty applied to both him and Miller, the law and justice are prostituted to an overwhelming ridiculosity where Miller is committed to the gaol for upwards of 14 years while Belt, who not only violated his parole, but committed a felony by fleeing the realm, must serve but six months in a county jail. Had Mr. Justice Ellett quoted some more of Section 578 of the above mentioned statute, to the effect that * * * “But where a statute *397contains a saving clause providing that the act may not be construed to affect any pending prosecution * * *.” (emphasis added) the Section, in effect does not apply, it seems to me that the whole Section becomes flaccid and inapropos. This conclusion would become much more significant had he quoted verbatim Title 68-3-5, Utah Code Annotated 1953, which puts the lie to the entire substance of the Section and the main opinion when it says: “The repeal of a statute does not revive a statute previously repealed, or affect any right which has accrued, any duty imposed, any penalty incurredj or any action or proceeding commenced %mder or by virUie of the statute repealed.” (Emphasis added.)
Mr. Justice Crockett, author of the main opinion, in saying that a defendant is entitled to the benefit of the penalty existing at the time of sentence, cites 21 Am.Jur.2d 543, Criminal Law in support thereof. A casual reading of that section will indicate that in no way does it support such a conclusion, and to cite it for such contention is inaccurate reporting. It says absolutely nothing as to what penalty is applicable, but simply states when a sentence shall begin to run, — the word “penalty” being a complete stranger to the referred-to text.
As to the inconsistency of the main opinion to which I adverted above, the author there clearly indicates that because there were different dates of sentence Miller was subject to a felony with incarceration in State Prison for upwards of 14 years, for doing the same thing, at the same time, under the same statute, with the same penalty, for the same guilt, while Belt was subject to only six months. This philosophy sanctions such discrimination under the illogical, unreasonable platitude and guise that “time of sentence,” — not guilt or “time of incarceration,” — is of the essence.
In the next breath, the main opinion inconsistently philosophizes as follows:
* * * There are some other fundamental principles engrained in our law which, though not directly controlling on the problem at hand, are generally in harmony with the policy considerations which lead to the conclusion we have reached herein. One of these is that to insist on the prior existing harsher penalty is a refusal to accept and keep abreast of the process which has been continuing over the years of ameliorating and modifying the treatment of antisocial behavior by changing the emphasis from vengeance and punishment to treatment and rehabilitation. In the same tenor are the time-honored rules of the criminal law generally favorable to one accused of crime: that in case of doubt or uncertainty as to the degree of crime, he is entitled to the lesser; and correlated thereto: that as to an alternative between a severe or a lenient punishment, he is entitled to the latter.
If what is said in the above makes for logic, reason, justice and for good sense, why is it that to insist on the prior, harsh*398er penalty- is.a refusal to keep abreast of a continuing policy to ameliorate treatment, of antisocial behavior by changing vengeance to rehabilitation, — as to Belt, but not as to Miller under identical facts, — particularly when the facts indicate that Belt, the bolter, appears to be more antisocial than Miller, the meek? Under the inconsistencies of the main opinion, the more "antiso-ciable” you are, the more "rehabilitatable” you are if the date of sentence is changed by the legislature, and the more antisocial person can depart to parts unknown until that magic “effective date” for sentence has arrived and passed. If what is said by the main opinion has any degree of profundity why should not the time-honored rules of criminal law, in case of doubt or uncertainty as to degree of crime, be as favorable to Miller as to Belt, entitling him also to the lesser six months instead of the greater 14 years ?
The main opinion speaks of justice to a class, but it denies it to some of the individuals in that class. According to the philosophy in this instance, where the law of the case apparently encompasses' two facets that are irreconcilably duplicitous, and although I think Miller should be the law, my suggestion is that the main opinion in turn'should suggest turning that facet toward the sun that represents compas'sion, rehabilitation, benefit of lesser penal- - ties, and-the like and in doing so, beam its ray at the prison door, melt the lock and give the benefit of a lesser penalty passed by the legislature to anyone behind that door who has been subjected to a greater penalty, — no matter when the offense was committed or the sentence imposed, — else consistency, thou art not a jewel.
CALLISTER, C. J., concurs in the dissenting opinion of HENRIOD, J.