(dissenting).
If I understand the court’s holding, it ■commutes all pending death sentences to life imprisonment. Further, it has the effect ■of commuting all future death sentences to life imprisonment until the legislature designates a new place of execution. Under the court’s ex post facto theory the death penalty could only be inflicted on persons committing capital crimes after the legislature designates a new place of execution. The court concludes all this because Kilby Prison no longer exists and bases its decision on the “cruel and unusual punishment” and “ex post facto” provisions of the state and federal constitutions.
It is my view that had the legislature intended to abolish capital punishment it would have done so in no uncertain language. It is plain to me that the obvious intent of the legislature was merely to move the state’s maximum security penitentiary from Montgomery County to Escambia County. There are naturally many cases ■of legislative oversight and when these occur it is a proper function of the judiciary to interpret the law so as to give meaning ■and effect to the manifest intent of the legislature as long as this process does not rise to unconstitutional proportions.
The punishment of death by electrocution has been held by our Supreme Court to be neither cruel nor unusual within the meaning of the constitution. Lee v. State, 227 Ala. 2, 150 So. 164. See also 30 A.L.R. 1452.
The majority holds that to let Brown’s death sentence stand would constitute cruel and unusual punishment; to-wit, “psychological cruelty” because of the uncertainty of the date of execution. This position is untenable because Brown’s time of execution is already uncertain by operation of the automatic appeal statute and the appellate process.
Tit. 15, § 382(2), provides in part as follows :
“In all cases wherein a defendant is tried and convicted for the commission of a felony against the peace and dignity of the state of Alabama and the death sentence is imposed, it shall be the duty of the trial judge immediately after the imposition of sentence to enter of record, with or without the direction or election of the defendant, that the defendant appeals from said judgment of conviction. * * * ” (Emphasis added.)
Logically then, the automatic appeal statute imposes the same uncertain delay on Brown as does his present predicament.
In my judgment, no one could successfully contend that the automatic appeal statute is unconstitutional since its major purpose is to insure appellate review when so drastic a punishment is involved. I do not think the existence of the automatic appeal statute needs defending because its provisions inure to the benefit of the defendant.
It is my view then that this possible delay in Brown’s execution does not constitute “cruel and unusual punishment.”
Were the present situation to continue for several years, I could begin to understand the rationale of the majority on this point. However, as things now stand, I can only regard the situation as a temporary boon to those under sentence of death. I would at least give the legislature time to meet in regular session, i. e., a reasonable time to pass an act designating a new place for executions of the death sen*321tence, before designating the situation psychologically cruel.
In the alternative, the majority opinion advances the proposition that any law the state legislature might in the future enact authorizing the carrying out of the sentence of death by electrocution at Holman Prison would be ex post facto to any living convict then under sentence of death.
I find this argument equally unsustainable.
An ex post facto law is:
“ * * * ist. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender Calder v. Bull, 3 U.S. (Dallas) 386, 1 L.Ed. 648.
See also Watson v. Mercer, 33 U.S. (8 Peters) 88, 8 L.Ed. 876; Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 6 L.Ed. 606; State ex rel. Brassell v. Teasley, 194 Ala. 574, 69 So. 723.
The death penalty in Alabama is legally authorized as a means of punishment under Tit. 15, § 325, Code of Alabama, 1940. Also, under Tit. 14, § 318, it is specifically provided as one of two possible punishments for first degree murder; the other being life imprisonment at the jury’s discretion.
Death by electrocution is legally provided for as the manner of carrying out the death penalty in Alabama under Tit. 15, §§ 325 and 343, Code of Alabama, 1940.
These specific statutes, then, create and make legal (1) death, (2) by electrocution in the State of Alabama as punishment for certain crimes.
True, the State Legislature has, by moving the State penitentiary and authorizing the destruction of Kilby Prison, in effect destroyed the place where the death penalty is to be executed under Tit. 15, § 348, Code of Alabama, 1940. I find no action on our legislature’s part which raises any legal or common sense presumption that the legislature intended to abolish capital punishment in this State. Nor do I believe that the place of execution is so vital to this discussion that it vitiates the law itself.
Rooney v. North Dakota, 196 U.S. 319, 25 S.Ct. 264, 49 L.Ed. 494, cited in the majority opinion, holds squarely that so long as it is within the boundaries of the state having jurisdiction over the offense, the place where an execution is to be carried out is of no consequence to the one under sentence, and he is not entitled to be heard on the issue. See also 21 Am.Jur.2d, Criminal Law, § 596.
In this case, North Dakota had a statute fixing the punishment for first degree murder at death by hanging in the jail of the county in which the crime was committed within a period of from three to six months from judgment. Rooney was tried and convicted under this law. Prior to sentencing, however, a new state statute was enacted which provided that the death penalty of hanging should take place in the state penitentiary within six to nine months from judgment.
Rooney dealt solely with whether the new law was ex post facto and I believe the language used by Justice Harlan in that case would be equally appropriate to any new law the Alabama Legislature might pass providing that the execution of death sentences by electrocution be moved to Holman Prison.
I quote in pertinent part from Rooney:
“It appears from the statement of the case that the statute in force when the sentence of death was pronounced dif*322fered ii'om those in force when the crime was committed and when the verdict was rendered, in these particulars:
"1. By the later law, close confinement in the penitentiary for not less than six months and not more than nine months, after judgment and before execution, was substituted for confinement in the county jail for not less than three months nor more than six months after judgment and before execution.
“2. By the later law, hanging, within an inclosure at the penitentiary by the warden or his deputy, was substituted for hanging by the sheriff within the yard of the jail of the county in which the conviction occurred.
“We are of opinion that in the particulars just mentioned the statute of 1903 is not repugnant to the constitutional provision declaring that no state shall pass an ex post facto law. It did not create a new offense, nor aggravate or increase the enormity of the crime for the commission of which the accused was convicted, nor require the infliction upon the accused of any greater or more severe punishment than was prescribed by law at the time of the commission of the offense. The changes, looked at in the light of reason and common sense and applied to the present case, are to be taken as favorable, rather than as unfavorable, to him. It may be sometimes difficult to say whether particular changes in the law are or are not in mitigation of the punishment for crimes previously committed. But it must be taken that there is such mitigation when by the later law, there is an enlargement of the period of confinement prior to the actual execution of the criminal by hanging. The giving, by the later statute, of three months’ additional time to live, after the rendition of judgment, was clearly to his advantage, for the court must assume that every rational person desires to live as long as he may. If the shortening of the time of confinement, whether in the county jail or in the penitentiary before execution, would have increased,, as undoubtedly it would have increased, the punishment to the disadvantage of a criminal sentenced to be hung, the enlargement of such time must be deemed a change for his benefit. So that a statute which mitigates the rigor of the law in force at the time a crime was committed cannot be regarded as ex post facto with reference to that crime. Calder v. Bull, 3 U.S. (3 Dall.) 386, 391, 1 L.Ed. 648, 650, Chase, J.; Story Const. § 1345 ; Cooley’s, Cost.Lim. 267; Com. v. Gardner, 11 Gray, 438, 443; 1 Bishop’s Crim. Law, § 280. Besides, the extension of the time to live, given by the later law, increased the opportunity of the accused to obtain a pardon or commutation from the governor of the state before his execution.
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“The objection that the later law required the execution of the sentence of death to take place within the limits of the penitentiary rather than in the county jail, as provided in the previous statute, is without merit. However material the place of confinement may be in case of some crimes not involving life, the place of execution, when the punishment is death, within the limits of the state, is of no practical consequence to the criminal. On such a matter he is not entitled to be heard.”
In McAdams v. State, 216 Ala. 659, 114 So. 39, we find the following:
“The mode of execution having been changed from hanging to electrocution since the defendant was convicted and sentenced, it is ordered that the circuit court forthwith bring the defendant before it for resentence according to the provisions of the existing law.”
In 16A C.J.S. Constitutional Law § 442, it is stated:
“Accordingly, acts requiring execution of a capital sentence to be made at a dif*323ferent place, or out oí the public view, or at a different time of the day, or changing the manner of execution from hanging to electrocution, have been held not ex post facto as to prior offenses, as has a constitutional amendment substituting lethal gas for hanging.”
Presumably, this same problem was before our Supreme Court in the cases of Seibold v. State, 287 Ala. 549, 253 So.2d 302, Dec. 17, 1970; Edwards v. State, 287 Ala. 588, 253 So.2d 513, Oct. 7, 1971, and Jackson v. State, 239 So.2d 303, Aug. 6, 1970. In Seibold execution was set by the court on February 19, 1971. In Edwards execution was set by the court on September 18, 1970. In Jackson execution was set by the court on October 9, 1970.
Each of these cases was affirmed and execution dates were set subsequent to January 21, 1970.
In none of these cases did the Supreme Court address itself to this issue, yet clearly each of these cases will fall within the ambit of this court’s decision.
Lastly, I know of no authority for appellate courts in this jurisdiction to modify or reduce sentences. In Scott v. State, 247 Ala. 62, 22 So.2d 529, Justice Livingston said:
“This court is without authority in criminal cases to reduce the punishment fixed, by the jury in the exercise of the discretion given them by law.”
Also in Wilson v. State, 268 Ala. 86, 105 So.2d 66, our Supreme Court observed:
. . . The trial court did not have, nor does this court have, authority to modify the punishment. Scott v. State, 247 Ala. 62, 22 So.2d 529. Under the Constitution of Alabama the power to commute a death sentence is vested exclusively in the Governor. Constitution of 1901, § 124; Amendment 38 to the Constitution of 1901, Code 1940, Vol. 1, page 332; Montgomery v. State, 231 Ala. 1, 163 So. 365, 101 A.L.R. 1394; In re Upshaw, 247 Ala. 221, 23 So.2d 861.”
For the foregoing reasons I therefore respectfully dissent,