(concurring).
I concur fully in the principal opinion. It follows faithfully, as it must, the rationale of the court’s unanimous en banc decision in Garrett v. State1 on June 14, 1972. It does not veer in the slightest degree from the path of reason of Garrett, and rightly so, despite the inclination some might have to be swayed because of the impact on the court’s criminal appellate jurisdiction as a result of the decision of the United States Supreme Court abolishing the death penalty2 on June 29, fifteen days after Garrett.
If, as my dissenting brothers believe, the court is in an untenable position with reference to jurisdiction in criminal appeals, it is there, I respectfully submit, not because of the decision in Garrett or because of the principal opinion, but because, as the dissenting opinion so clearly demonstrates, it was placed there by language used in § 3 of Article V and the recent decision in Furman.
The framers of the 1970 amendment had the foresight to draft sufficient flexibility into Section 10 of the Judicial Article as to empower the court to transfer cases before opinion by order and to decide a case the same as on original appeal.
It should be remembered that on the day Garrett was decided, the court, recognizing that the obvious intent of the people was that this court decide the most serious criminal offenses, entered an order pursuant to the authority of Section 10, directing that all appeals involving convictions wherein the death penalty is imposed be transferred immediately from the court of appeals to this court before opinion. This order remains in effect. The decision in Furman did not affect it. If the general assembly should enact legislation making an offense punishable solely by death, an appeal from a conviction which imposes that sentence would be decided by this court. With this order in effect, the court recognizes the possibility of the enactment of such legislation. One fact thus remains clear and certain: the court will not permit the affirmance of a judgment imposing the death sentence without a full review by it, the state’s court of last resort.
. 481 S.W.2d 225.
. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.