concurring in part; dissenting in part.
I am in full accord with so much of the majority opinion as holds that the Tennessee death penalty statute is unconstitutional. This conclusion is mandated by the recent decision of the Supreme Court of the United States as set forth in the main opinion.
I.
The only remaining questions are whether these defendants, and others similarly situated must be given (1) a new trial, or (2) a sentencing hearing, with punishment fixed at imprisonment for life or for some period over ten years (Sec. 39-2408, T.C.A.) or (3) whether this Court may properly impose a life sentence or a sentence for a term of years without remanding the case and without the consent of the state or the defendant.
This is a case of first impression in this state in that no reported decision of this Court provides a positive and direct answer. It is true that we have a line of seemingly analogous cases, but, upon analysis, the distinction is unmistakable.
The instant cases are not cases wherein the Court has concluded that the convicting evidence is sufficient only to sustain a lesser included offense, as in Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 and in a long line of cases flowing therefrom. Nor are they cases wherein the error committed only affected the sentence and not guilt or innocence as in Farris v. State, 535 S.W.2d 608 (Tenn.1976).
In each case the defendant was guilty of the commission of a brutal and heinous murder, with no mitigating circumstances. Each had a fair trial.
There being no direct precedent to guide us in our conclusion, our decision must be the product of a reasoned, rational and realistic approach, within the framework of controlling principles of constitutional and statutory law.
II.
It is incontestably true that a conviction of first degree murder carries with it a *648conviction of all lesser included offenses, ranging all the way down to simple assault.1 As an inevitable corollary, such a conviction entails punishment ranging from death by electrocution, under the law then in effect, all the way down to a monetary penalty or confinement in the county jail.
The defendant, in such a case, has had his full constitutional right to trial by jury, and, in legal effect, has been found guilty of all offenses and subject to all sentences.
In the case of these defendants each jury had all these options. True, if they found guilt of first degree murder they could only punish by electrocution, but they were not compelled to make such a finding. They could have found either defendant guilty of murder in the second degree and fixed punishment at life or at ten years or more. And, again, such finding and punishment are necessarily included in the finding of murder in the first degree and death by electrocution.
By quirk of fate, these defendants have been convicted under an unconstitutional statute and we must nullify the sentence of death by electrocution; however, this leaves intact the conviction of second degree murder. Since the jury verdict validated any and all lesser sentences, this reduction in degree would carry with it a reduction to the next highest penalty, life imprisonment.
We are commanded by statute (Sec. 40-3409, T.C.A.) in all criminal cases to
render such judgment on the record as the law demands. (Emphasis supplied).
In my view, the law demands that these convicted murderers be dealt with in a manner commensurate with the gravity of their offenses. Neither the dictates of the law nor the commands of conscience require that we give them a second opportunity to plead their causes to a jury.
Discussing the alternatives available to the Court in the resentencing of death penalty cases, Justice McCanless, writing for the Court in Bowen v. State, 488 S.W.2d 373 (Tenn.1972), stated that
it is conceivably within the power of this Court to reduce the death penalty to ninety-nine years, where a defendant is clearly and beyond a reasonable doubt guilty of a first degree murder which justifies the death penalty, which would be applied except for the unconstitutionality of the death part of the sentence. 488 S.W.2d at 377.
While, admittedly, the language quoted from Bowen, supra, was dictum in that ease, it is uniquely appropriate in the present situation, and, in my view, is a correct statement of the law.
III.
There is a practical aspect to this matter. A sentencing hearing will require the same precise proof and trial proceedings as the original trial, plus evidence in mitigation and extenuation that was not admissible in a unitary trial where the jury was called upon to find guilt or innocence and fix punishment. Numerous first degree murder cases now pend determination in the appellate courts. To remand all of them for sentencing hearings would be an undue strain upon an already over-burdened criminal justice system, to say nothing of the tremendous cost involved.
Thirty-six (36) persons convicted of first degree murder and sentenced to death by electrocution are now on “death row” in our state penitentiary. An unknown number are in county jails throughout the state. A conservative estimate of the cost per day of a jury trial in our criminal courts would be approximately $1,000.00. The cost to the state of these sentencing hearings will be staggering.
I fully realize that justice may not be rationed and that normally the cost factor is not a relevant consideration; however, in cases such as these where full, fair and constitutional hearings have already decid*649ed all issues, it would be a complete waste of public funds to conduct re-trials.
Justice suffers when justice is delayed. The surest solution to the high incidence of crime in America, in my view, is sure, swift and certain punishment. Nothing degrades our criminal justice system more and creates more disrespect for the courts and its processes than the lingering delay in the disposition of criminal cases. I am unwilling to contribute to that delay.
IV.
There is yet another solution.
The Governor has the constitutional and statutory power to commute a punishment of death to imprisonment for life in the penitentiary. Sec. 40-3506, T.C.A.; Bowen v. State, 488 S.W.2d 373 (Tenn.1972), and his commutation of sentence is a substitution of a lesser for a greater punishment.2
Further Section 40-3506, T.C.A. provides:
40-3506. Commutation on certificate of Supreme Court. — The governor may, likewise, commute the punishment from death to imprisonment for life, upon the certificate of the Supreme Court, entered on the minutes of the court, that in their opinion, there were extenuating circumstances attending the case, and that the punishment ought to be commuted.
In view of the unique developments surrounding these cases in particular and the death penalty in Tennessee in general, this Court could certify to the Governor the existence of extenuating circumstances. Admittedly this is a liberal — and perhaps a strained — interpretation of the legislative intent, but I feel it justified under the unique circumstances of this case.
Moreover, this statute is not binding upon this Court and in no sense entrenches upon the Court’s power, duty or obligation to convey to the Governor its views in appropriate cases. We, therefore, are not limited to the certificate as set forth in the statute, but, independent of the statute, in a proper case, may make our determination that executive commutation is appropriate, and communicate this determination to the Governor.
Therefore, pursuant to, and independent of the statute, by my signature hereon, I do hereby certify to His Excellency, The Honorable Ray Blanton, Governor of the State of Tennessee, that in my opinion, there are extenuating circumstances in these cases, and that the punishments ought to be commuted to life imprisonment. This certification should be deemed and treated as having been made in all cases wherein the same constitutional problems have arisen or may arise.
In making this certification, I am not unmindful of the doctrine of separation of powers. This wholesome doctrine, however, does not preclude cooperation, coordination and communication among the three coordinate branches of the state government on matters of vital public concern.
In summary, I would reduce these sentences to life imprisonment,3 thereby “rendering) such judgment as the law demands.” In the alternative, I would uphold the convictions, certify to the Governor the existence of extenuating circumstances, wait a reasonable length of time for the Governor’s official response, and should he fail to act, would reduce the sentences in the manner and to the extent aforesaid.
. We are not concerned, in this opinion, with the duty of the trial judge in charging lesser included offenses.
. It must be borne in mind that the recent decisions of the Supreme Court of the United States did not ipso facto operate to void these sentences. They stand until this Court, applying the principles established by the Supreme Court of the United States, invalidates them. After the commutation these sentences stand on the same footing as if they had been pronounced in the original trial for the commuted term. 488 S.W.2d at 375-76. After commutation the original judgments stand as valid and no change is necessary. This follows from the fact that the commutation does not affect the judgment, but merely mitigates the punishment. Therefore a commutation merely renders so much of the original judgment as adjudges the death penalty a nullity, leaving the remainder intact. 488 S.W.2d at 378. Review in this Court would be limited to guilt or innocence of first degree murder.
. Life imprisonment is the second most severe form of punishment under Tennessee Law.