CATES, Judge.
First degree murder: sentence, death by electrocution.
I
Brown, Irving Crawford and Gloria Jean Cannon left her home early in the morning May 4, 1969, in Crawford’s car and drove to the cargo yard of Mercury Freight Lines. There Brown and Crawford stole a carton purporting to contain a power lawnmower. An employee of the freight line, Buster Williams, tried to stop them but Crawford chased him off with a pistol.
While Williams went to alert the watchman, Azell Plarris, Brown and Crawford put the box in the trunk of the car. Harris chased them on foot. Crawford driving with his head down to avoid Plarris’s shots hit a post, then a railroad track.
[307]*307There he and Brown got out shooting at Harris who in the meantime had caught up with the stalled car. Harris was shot in the head and died from this wound.
II
The jury was qualified in accordance with Witherspoon v. Ill., 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. We have set out the trial judge’s interrogation in the Appendix hereto. See also Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433; Jackson v. State, 285 Ala. 564, 234 So.2d 579; Seibold v. State, 287 Ala. 549, 253 So.2d 302, (December 17, 1970); and Howard v. State, 287 Ala. 435, 252 So.2d 304, (December 17, 1970). We find no error.
III
In undertaking the Witherspoon examination, the prosecuting counsel used the expression “regardless of how nauseating the evidence might be.” Objection to this term was overruled. See Appendix.
First, the use of the subjunctive “might” left the sickening quality of the evidence a matter to be determined. Second, any homicide can be viewed as nauseating. Third, the statement was not made in argument. We find no error.
IV
After the evidence was closed, defense counsel objected to the deputy district attorney’s argument. The record shows:
“(Thereupon, Mr. McDonald continued addressing the jury, in opening argument, on behalf of the State, during which the following proceedings were had and done:)
“MR. CHURCH: May it please the Court, we are going to object to the reference to other crimes that are not before this Court.
“There is only one crime in this indictment, and we ask that Mr. McDonald restrict himself to the crime in the indictment.
“THE COURT: What was the statement? I was working on my notes. I’m sorry.
“MR. MCDONALD: I said ‘A burglary, or robbery,’ and I said something to the effect that he wouldn’t need dynamite in a robbery, but, in a burglary, he could, to blow a safe, or get some door open, or something of that nature.
“I don’t know exactly.
“THE COURT: I overrule the objection.
****** “MR. CHURCH: May it please the Court. I am going to object to the statements made by Mr. McDonald, wherein he says that on this day you can save my daughter’s life, my husband’s life, or my wife’s life, as being outside the realm of issues in this case, and intended to inflame the minds and passions of the jury.
“THE COURT: Overrule.
“MR. CHURCH: We except.”
The argument as to the dynamite was within the legitimate inferences of the evidence.
As to the second quotation, this too would seem in bounds where, as here, there was an exchange of fusilades on a public street. Furthermore, we also could uphold the lower court’s ruling under Supreme Court Rule 45.
V
We do not consider the remarks above quoted as to the possible use of the dynamite to break and enter as referring to another crime separate and distinct from the one which led to Azell Harris’s death.
The carrying of the dynamite on the larcenous expedition could lead to the inference that it was preparatory to being [308]*308used to break and enter if the opportunity arose or the exigencies of the situation demanded.
VI
The State did not undertake to prove the market value of the lawnmower. The court below charged as to grand larceny’s being a felony. This was in the course of charging (see Code 1940, T. 14, § 314) that homicide committed in perpetrating robbery was first degree murder.
Our felony murder provision does not embrace larceny without violence or threats thereof. Hence, defining larceny simpliciter was irrelevant other than to explain the deceased’s right to protect Mercury Freight Line’s property and cargo.
Defense counsel took no exception to this instruction before the jury retired. Hence, no error arose.
VII
Along with his motion for new trial, defendant filed an affidavit which states that in closing argument the Deputy District Attorney said:
“ ‘Now if you (meaning the jury) make a mistake here, God in Flis wisdom will see that it is corrected later on.’ ”
However, the record is barren of any showing that the remarks were called to the court’s attention before the jury retired. Without the trial judge having the occasion to rule on the propriety of invoking Divine Intercession, we are not called on to determine the question.
This argument is not within the scope of the Automatic Appeal Act of June 24, 1943. The plain error doctrine of § 10 of that Act refers only to “testimony.”
VIII
The jury had the case submitted to it on December 10, 1969, and found Brown guilty of first degree murder and fixed his punishment at death. On December 12, 1969, the trial judge, after allocutus pronounced judgment of guilt and sentence. The date of execution was set for February 26, 1970.
Upon notice of appeal being given, the court below suspended execution of the sentence pending decision of this Court.
Appeal under the Act of June 24, 1943, supra, is mandatory. Certiorari from this Court is considered by the Supreme Court “as a matter of right.” Supreme Court Rule 39, as amended December 14, 1970.
Code 1940, T. 15, § 325, as amended, provides (in part) :
“The only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state, and death by electrocution. * *
Code 1940, T. 14, § 318, provides (in part) :
“Any person who is guilty of murder in the first degree, shall, on conviction, suffer death, or imprisonment in the penitentiary for life, at the discretion of the jury; * *
However, by closing Kilby Prison, the executive arm of the State has had taken from it the means of lawfully killing Brown by electrocuting him. The death chair which can only be energized at Kilby no longer has a home there.
Execution of a death sentence is detailed in Code 1940, T. 15, §§ 343-356, being Article 6 of Chapter 17 of that Title. Particularly, from § 348,1 Kilby Prison alone is the legally specified place of execution.
Under Act No. 678, September 1, 1965, as amended by Act No. 103, April 11, 1967, [309]*309the Legislature has taken Kilby Prison from the Board of Corrections and transferred it to the Alabama Correction Institution Finance Authority, § 22, Act No. 678, supra. Under § 24 thereof the Board ■of Corrections was authorized to lease ■ other facilities from the Authority on a year to year basis.
The land and premises of Kilby Prison were deeded pursuant to said Act No. 678 to the Authority June 23, 1967. The electric chair was dismantled and the last of the prison inmates were moved to other parts of the penitentiary system, the last 'leaving January 21, 1970.
Kilby Prison was imploded with dynamite and is now completely razed.
On July 21, 1970, the Attorney General advised the Governor that the execution ■of a “death sentence may take place only inside the walls of Kilby Prison in Montgomery. * * * [I]n the absence of statutory authority * * * execution may not take place at the Holman Prison in Atmore.” Op.A. G.,Quarterly Rep. July— Sept., 1970, Vol. 140, p. 11.
Blackstone, citing Coke, Finch and Hale, points out that execution of a death sentence is justifiable homicide only if carried out as the law requires it. The mode must be that prescribed:
“ * * * If an officer beheads one who is adjudged to be hanged, or vice versa, it is murder: (i) for he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law: but if a sheriff changes one kind of death for another, he then acts by his own authority, which extends not to the commission of homicide; and besides, this license might occasion a very gross abuse of his power. The King, indeed, may remit part of a sentence; as in the case of treason, all but the beheading; but this is no change, no introduction of a new punishment; and in the case of felony, where the judgment is to be hanged, the King (it hath been said) cannot legally order even a peer to be beheaded. * *
Thus, in our jurisprudence in Ex parte Pearson, 59 Ala. 654, it was held that a sentence to hard labor could not be executed by confinement in the county jail. Moreover, there the Supreme Court reversed a lower court judgment which remanded the prisoner to await the County Commissioners’ arranging his being hired out. The Supreme Court relieved the petitioner “from further imprisonment.”
In White v. State, 134 Ala. 197, 32 So. 320, the principle applied in Pearson, supra, was ascribed to (1) unreasonably long detention by the sheriff and (2) the neglect of the county commissioners in providing a place for hard labor confinement. In White, supra, the prisoner was ordered to be immediately delivered to the penitentiary authorities rather than to be kept in the county jail pending an appeal without suspension of sentence.
In Kirby v. State, 62 Ala. 51, Brickell, C. J., in explicating the rationale of Ex parte Parson, supra, remarked, “The law would not sanction * * * a sentence dependent on matter of fact to be ascertained subsequently by an executive officer.” (Italics added). Continuing the opinion states:
“ * * * The sentence of a court must clearly express the punishment the convict of crime is to suffer, and when it is so expressed, the sentence is authority for the infliction of that punishment only, and not for the infliction of another and different punishment. *
See also Aaron v. State, 40 Ala. 307.
In Webster v. State, 47 Fla. 108, 36 So. 584, the Florida Supreme Court in similar vein wrote:
“9. Section 2947, Rev.St. 1892, requires that sentences in capital cases shall ‘be executed within the walls or inclosure of the jail or prison where the prisoner may be confined’; and a sentence that the [310]*310defendant 'be taken by the sheriff * * to the yard surrounding the common jail * * * then and there’ hung, is not in accordance with the statute, and is error for which the judgment and sentence will be reversed, and the cause remanded for a proper sentence.
“(Syllabus by the Court.)”
We do not think that the instant anomaly is governed by Code 1940, T. 1, § 11, as a case where the penalty for the offense was altered after commission of the offense. Rather the death penalty has been suspended as effectually as if the Legislature had enacted that no electricity may be inside the penitentiary system. See Price v. Moyer, 288 F. 269, where apparently a delay in execution ensued from a delay in appropriations.
The principal problem which here rises to constitutional proportions stems from the suspended animation of Brown’s decreed electrocution. The next regular session of the Legislature convenes in May 1971. One extraordinary session has already gone by since Kilby Prison was closed. Acts 1969-70, Vol. Ill, p. 2595 et seq.
The result is that Brown has a molecular Sword of Damocles suspended to fall if and whenever the Legislature amends § 348, supra.
Is this indefinite suspension permissible if revival were to restore the means of executon? We think not because of the joint inhibitions against ex post facto laws and against cruel and unusual punishments. Constitution, U.S., Art. I, § 10, cl. 1, Amendments 8 and 14; Constitution, Ala. 1901, §§ 7, 15, and 22.
New York by Ch. 489, Laws of 1888, provided for electrocution as the punishment of death. Applying this punishment to a convict who committed a crime March 29, 1889, i. e. after the effective date of the act did not breach the inhibition against ex post facto laws. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519.
Taking up the cruel and unusual punishment question the court remarked:
“ * * * Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous,— something more than the mere extinguishment of life.”
Our Supreme Court has said, citing the Kemmler opinion:
“ * * * Punishments are cruel when they involve torture or a lingering death; * * ’ * ” Boykin v. State, 281 Ala. 659, 207 So.2d 412.
“However, 'the punishment of death’ or imprisonment for life is neither unusual nor cruel, within the meaning of the Constitution, where the crime for which punishment is imposed is malevolent and proximately causes the death of a human being, so long as the death inflicted is speedy, and without undue pain or torture. * * (Italics added). Lee v. State, 227 Ala. 2, 150 So. 164.
Perhaps our Founding Fathers were trying to compress into the phrase cruel and unusual punishments some of the rather extreme means of the law of treason in England. We quote from Kenny’s Outlines of Criminal Law, (17th Ed.), § 419, p. 371:
“Treason, like all felonies, was punished with death. But the execution of a traitor was accompanied with special circumstances of horror, to mark the supreme heinousness of his crime. Instead of being taken in a cart to the scaffold, he was drawn to it on a hurdle, hanged only partially, cut down alive and then disembowelled, beheaded and quartered. The head and quarters were permanently exposed in some conspicuous place, after being boiled in salt to prevent putrefaction, and in cummin seed to prevent birds pecking at them. But [311]*311the form of sentence m treason was not quite invariable, and the King often remitted everything excepting the beheading. In later times, even where there was no such remission, the executioner usually took it upon himself to make the strangulation fatal (technically an act of murder, ante, § 94). At last it was enacted, in 1814, that the beheading and quartering should not take place till after the prisoner had been put to death by hanging. (Women were never beheaded or quartered, but were burned.) And finally in 1870 by the Forfeiture Act all the exceptional features of execution for treason were abolished, except in cases where quartering or beheading may be ordered by royal warrant. For by the Act of 1814 the Crown has still power to order, by warrant under the sign manual, that any male who has been sentenced to be hanged for treason shall be beheaded. The judge, however, cannot appoint any mode of death but hanging. In treason (as in all capital crimes except murder), the common law rule which permits executions to take place in public still holds.” (footnotes omitted)
' Where a Phillipine convict was sentenced, inter alia to fifteen years cadena, i. e. to be staked out like a grazing cow, the Supreme Court had no trouble in finding the punishment disproportionate to the crime and, hence, a breach of the Eighth Amendment. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793.
Physical cruelty is not alone condemned; mental torture also is prohibited. The withholding or delay of actual physical force is a recognized device either of punishment or inducement to confess. In the Thottsand and One Nights, it is the frame of the narratives which kept the storyteller alive. To Christians, crucifixion epitomizes the lingering torture— both physical and spiritual.
Statelessness was rejected in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed. 2d 630. There the plurality opinion (at p. 102, 78 S.Ct. at p. 599) said, “The threat makes the punishment obnoxious.”
In People v. Chessman, 52 Cal.2d 467, 341 P.2d 679, the Supreme Court of California went into considerable detail to demonstrate that Chessman’s long detention pending execution of his sentence of death was not due to unreasonable delay by the state. Therefore, the state had not imposed cruel or unusual punishment on him.
Here, however, the State asks us to (1) either ignore the plain mandate of Code 1940, T. 15, § 348 or (2) allow the defendant to be kept until the Legislature shall have had an opportunity to amend that code section. At argument, the State orally cited an Indiana case, Keith v. State, 157 Ind. 376, 61 N.E. 716, said to fit the first alternative above.
The Indiana Court in Keith, supra, however, refused to consider the question of changing the law as to the place of execution. This because Keith’s motion for new trial did not have a ground touching thereon. Under Code 1940, T. 15, § 389, we are under no such narrow stricture. The error here is appa'rent on the record.
Had our electrocution statute been worded like that in Georgia2 as shown in Benton v. State, 187 Ga. 149, 199 S.E. 749, we would have no problem. There the court correctly pointed out that the sentence of the law is not a contract between the convict and the state within the meaning of Article 1, § 10, Cl. 1, of the Constitution of the United States.
In Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182, the court said:
“ * * * The Constitution forbids the application of any new punitive measure to a crime already consummated, to the [312]*312detriment or material disadvantage of the wrongdoer. * * *.
“ * * * It could hardly be thought that, if a punishment for murder of life imprisonment or death were changed to death alone, the latter penalty could be applied to homicide committed before the change. Marion v. State, 16 Neb. 349, 20 N.W. 289. * * * ”
See also Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648, (ex post facto: “3d, Every law that * * * inflicts a greater punishment than was annexed to the crime when committed.”); Medley, Petitioner, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835.
“And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in use of a modern phrase, it is called a law of procedure? We think it cannot.” Kring v. Missouri, 107 U.S. 221, 232, 2 S.Ct. 443, 453, 27 L.Ed. 506, (5-4 court).
Here we have no repeal of former punishment such as was present in Medley, supra. Rather the Legislature by abolishing Kilby Prison has deprived the executive branch of the means of lawfully killing the convict.
Thus, there has resulted an enlargement of the period of confinement prior to the actual execution. In Rooney v. North Dakota, 196 U.S. 319, 25 S.Ct. 264, 49 L.Ed. 494, the court said:
“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. * * *
“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.”
It is clear that Rooney was given a definite time of additional life before death. Brown has only the uncertainty of an obsolete statute which may or may not be cloaked in a resurrection body to take him across the River Styx.
In 1947 the Supreme Court had the problem of multiple electrocutions to carry out a single death sentence. In State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed 422, where there had been a power failure or weakness at execution, the plurality opinion stated:
“ * * * The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution. The situation of the unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell block. We cannot agree that the hardship imposed upon the petitioner rises to that level of hardship denounced as denial of due process because of cruelty.”
The dissenting opinion states, in part:
“ * * * It is unthinkable that any state legislature in modern times would enact a statute expressly authorizing capital punishment by repeated applications of an electric current separated by intervals of days or hours until finally death shall result. The Legislature of Louisiana did not do so. The Supreme Court of Louisiana did not say that it did. The Supreme Court of Louisiana said merely that the pending petitions for relief in this case presented an execu[313]*313tive rather than a judical question and, by that mistake of law, it precluded itself from discussing the constitutional issue before us.
“In determining whether the proposed procedure is unconstitutional, we must measure it against a lawful electrocution. The contrast is that between instantaneous death and death by installments— caused by electric shocks administered after one or more intervening periods of complete consciousness of the victim. Electrocution, when instantaneous, can be inflicted by a state in conformity with due process of lazv. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519. The Supreme Court of Louisiana has held that electrocution, in the manner prescribed in its statute, is more humane than hanging. State ex rel. Pierre v. Jones, 200 La. 808, 9 So.2d 42, certiorari denied 317 U.S. 633, 63 S.Ct. 64, 87 L.Ed. 510. See also, Malloy v. State of South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905.
“The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself. Electrocution has been approved only in a form that eliminates suffering.” (Italics added)
State of Louisiana ex rel. Francis v. Resweber, supra, was, of course, before Robinson v. Calif., 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, which first applied the “cruel and unusual” punishment prohibition of the Eighth Amendment to the states via due process clause of the Fourteenth Amendment.
This was foreshadowed by In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 and State of Louisiana ex rel. Francis v. Resweber, supra. See Anno., 33 A.L.R. 3d 335, particularly § 3(c).
After Robinson, supra, in Jackson v. Bishop, 8 Cir., 404 F.2d 571, Judge (now Mr. Justice) Blackmun in outlawing flogging as penitentiary discipline wrote, in part:
“The principal opinion in Trop v. Dulles, supra, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed. 2d 630 (1958), although it commanded the votes of only four justices a decade ago, is, in our view, particularly pertinent. The issue was the validity of a federal statute which would denationalize a native born citizen who deserts the military service in time of war and is convicted thereof by a court-martial and dismissed or dishonorably discharged. The opinion provides guidelines and overtones which we feel safe in regarding as illustrative of the general thinking of a majority of the justices on the subject today. The opinion casts aside the death penalty ‘as an index of the constitutional limit on punishment,’ for it ‘has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.’ 356 U.S. at 99, 78 S.Ct. at 597. The Eighth Amendment’s basic concept ‘is nothing less than the dignity of man’ and assures that a state’s punishment power ‘be exercised within the limits of civilized standards.’ Fines, imprisonment, and even execution may be imposed ‘but any technique outside the bounds of these traditional penalties is constitutionally suspect.’ 356 U.S. at 100, 78 S.Ct. at 498. The scope of the Amendment is not ‘static.’ It ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ 356 U.S. at 102, 78 S.Ct. at 598. Virtually all the world’s civilized nations refuse to impose statelessness as punishment for crime. 356 U.S. at 102, 78 S.Ct. at 598.
“From that opinion we glean a recognition of, and a reliance in part upon, attitudes of contemporary society and comparative law. And the emphasis is on man’s basic dignity, on civilized precepts, and on flexibility and improvement in standards of decency as society [314]*314progresses and matures. Finally, it is ‘any technique’ outside the traditional bounds which ‘is constitutionally suspect.’ ”
IX
Conclusion
As Mr. Justice Blackmun, when on the Eighth Circuit, remarked in Jackson v. Bishop, supra, each case involving cruel and unusual punishment contrary to the mandate of the Constitution rests on its own facts. Hence, we shall recapitulate.
First and foremost, Brown under the judgment does not know and will not know from day to day until some court — State or Federal — says the State of Alabama has (or has not) delayed too long in bringing him to the electric chair. This uncertainty constitutes psychological cruelty. Moreover, it is unusual. Aaron v. State, 40 Ala. 307.
Second, death by electrocution is to be swift. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519. Here the bolt is swift but wait is unknown.
Third, the delay so far is not (as was the case in Price v. Moyer, supra) attributable to Brown. The Automatic Appeal Act, § 2 wisely or unwisely — granted (indeed, forced on him) an appeal to this Court. The time of execution originally set has expired; any new resentencing would be de novo. See Aaron v. State, supra; c. f. Washington v. Dowling, 92 Fla. 601, 109 So. 588.
Fourth, the failure of past legislatures to supply the lapsus calami of 1965 so as to keep a viable system of electrocution, has atrophied the death penalty pro tempore.
Finally, to renew this penalty now or later would be ex post facto or cruel and unusual,3 or both. Medley, Petitioner, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835.
Having concluded that the death sentence is legally invalid, we now take up the disposition of the case.
At common law, public hanging by or under the direction of the sheriff was the usual death penalty — treason aside. No matter how much hanging might be thought to be educational, deterrent, retributive and permanently isolating, nevertheless, under the usual standards of statutory construction, we consider that the retention of § 325, T. 15, and of § 318, T. 14, Code of 1940,4 stands as a declaration of legislative policy against a relapse into hanging by the neck until dead.
The death penalty having been indefinitely put aside, and the alternative of hanging not being valid, we meet the question of the tertium quid. This triternitive is life imprisonment.
The statute to punish first degree murder (§ 318, T. 14, Code 1940) gives the jury the discretion to assess life imprisonment or life extinction. Though the death penalty has been put on the shelf, still there remains the punishment of life imprisonment in the penitentiary. After the dismantlement of Kilby Prison and the electric [315]*315chair, life imprisonment legally was the only punishment tied to a finding of guilt of first degree murder.
It results, therefore, that the judgment below is due to be modified here by one showing a sentence of life imprisonment in the penitentiary.
Modified; affirmed as modified.
ALMON, J., dissents.
APPENDIX
“MR. McDONALD: AH right. Ladies and gentlemen, as His Honor did, I will address all of you collectively, but if any of these questions affect you, please answer out as if they were being addressed to you individually.
“Please don’t sit back and say, ‘Well, nobody else is raising their hand, so I won’t.’
“Please just answer out as if there were just the two of us having a conversation, you, individually, and myself.
% ‡ * * ‡
“Are there any among you who have a fixed opinion against capital punishment, that is, punishment by death in the electric chair ?
“(Thereupon, some of the jury venire raised their hands, and the following proceedings were had and done:)
“MR. McDONALD: That is Mrs. Marlin and Mrs. Nabors and Mrs. Littlefield.
“A JURY VENIREMAN: May I clarify what you mean by ‘fixed’ (sic) ?
“MR. McDONALD: Well, you are one of the extras now.
■“And Mr. Wright. That is Mr. Wright?
“A JURY VENIREMAN: Yes, sir.
“MR. McDONALD: Any others in the three panels?
“Let me ask you this, and I address this to all of you: Are there any among you who know right now, in the innermost part of your heart that you would never, under any circumstances, regardless of what the evidence was, regardless of how great the weight of the evidence, regardless of how nauseating the evidence might be — ■
“MR. CHURCH: I object to the use of the term ‘nauseating evidence.’ That is getting out of line.
“THE COURT: Overrule.
“MR. CHURCH: We except.
“MR. McDONALD: — if you know right now that you would never, under any circumstances, be able to return a death verdict against this or any other defendant?
“A JURY VENIREMAN: Raise your hands ?
“MR. McDONALD: Yes.
“(Thereupon, some of the jury veniremen raised their hands, following which the following proceedings were had and done:)
“MR. McDONALD: Your Honor, in that event, the State would like to challenge for cause.
“THE COURT: Let me get my questions out before I rule on it. I want to ask it in another way.
“MR. McDONALD: All right, sir.
“(Thereupon, the Court left the bench, went into the Court’s chambers, and, upon his return, the following proceedings were had and done:)
“THE COURT: Now, of the entire group, on the whole panel, whether it be those who raised their hand, or not, you heard the last question that Mr. McDonald asked you.
“Now, I have to rule on this, on his challenge of those jurors, and, before I rule, I want to ask you this question in this way:
“In the event that you are selected as one of the jurors to hear the evidence and to determine the guilt or innocence of the defendant in this case; and further in the event that defendant is found to be guilty of murder in the first degree by the jury, would you be willing to consider all of the [316]*316penalties provided by state law — and that includes capital punishment — without being irrevocably committed, before the trial has begun, to vote for or against any penalty provided by law regardless of the facts and circumstances that might emerge in the course of the trial and proceedings?
“Would your answer be the same to that on any of you? All right, let’s have a showing of hands
“(Thereupon, some of the jury venire raised their hands, following which the following proceedings were had and done:)
“THE COURT: In the event you are selected as one of the jurors to hear the evidence and to determine the guilt or innocence of the defendant in this case; and further, in the event that the defendant is found to be guilty of murder in the first degree, would you be willing to consider all of the penalties provided by state law — • and that includes the penalty of death — • without being irrevocably committed, before the trial has begun, to vote for or against any penalty provided by law — and that includes the death penalty — regardless of the facts and circumstances that might emerge in the course of the trial and the proceedings ?
“You would not? All right, let’s have the hands. Keep your hands up, those of you who say you wouldn’t.
“You had your hand up awhile ago. Does your hand still remain up?
“A JURY VENIREMAN: Definitely, I wouldn’t.
“THE COURT: You put your hand up awhile ago, didn’t you?
“A I was scratching my head.
“THE COURT: Please don’t scratch your head when I am having a show of hands.
“Who was it on this panel?
“MR. McDonald : Just one.
“THE COURT: Would your conscientious scruples against, or opposition to the death penalty, invariably compel you to vote-against capital punishment?
“If it would, please let me see your hands-again.
“(Thereupon, some of the jury veniremen-raised their hands, and the following proceedings were had and done:)
“THE COURT: Are there any of you, in the event that the defendant was found guilty of murder in the first degree by the jury, who would be irrevocably committed' to vote in favor of a death penalty, regardless of the facts and circumstances that might emerge in the course of the trial and proceedings ?
“All right, now, as I understand it, there are three ladies and one man that raised their hands in reply to the question asked by both the district attorney and the Court.
“I understand there is a challenge for cause ?
“MR. McDonald : Yes, sir.
“THE COURT: Let’s take them one at a. time.
“MR. CHURCH: May it please the Court,, could I ask them one special question before we proceed?
“THE COURT: Yes, sir, I guess so.
“MR. CHURCH: I just wanted to ask you, that raised your hand in regard to capital punishment, are you aware of the fact that there are other punishments ?
“Are you aware of the fact that there is an alternative to capital punishment?
“THE COURT: What would the materiality of that be?
“MR. CPIURCH: It seems like these jurors are confused.
“THE COURT: It doesn’t seem like they are confused to me. They say thay have a fixed opinion against capital punishment. That is the question.
[317]*317£iI£ you have any other questions in regard to that that might shed some light on that, all right,
“If you want to go further on, then, when it becomes your turn, and question them on the basis, if any of them have an irrevocable feeling about giving the death penalty, all right.
“I don’t see whether they know if there are other punishments, or not, would have anything to do with their feelings about capital punishment.
“These people are subject, at this point, to challenge for cause.
“MR. CHURCH: That is the reason, I feel like there is a real doubt in the minds of the jury.
“THE COURT: I am not going to permit argument. Certainly, there are more penalties for murder in the first degree. The punishment could be, in the event of conviction, life imprisonment in the penitentiary for murder in the first degree.
“That has no bearing on whether or not they are opposed to the death penalty.
“MR. CHURCH: That is what I wanted them to know, Your Honor.
“THE COURT: Would that make any difference in your stand, ladies and gentlemen, about the — the fact that there can be two possible punishments for murder in the first degree, of life imprisonment in the penitentiary, for life?
“Do any of you change what you stated before, since that has been stated to you?
“Let’s go back, now. What is your name, please, Ma’am?
“A Mrs. Marlin.
“THE COURT: All right. Betty Jean Marlin.
“Gentlemen, I am going to have to roll some of you. Would you take a seat ttp (indicating), Mrs. Marlin, by this gentleman (indicating) on the front bench?
“Herbert Marshall Boyd. Mr. Boyd, before I seat you, you had some question there a few minutes ago ?
“THE JURY VENIREMAN: I was asking him to clarify what he meant by ‘fixed opinion.’
“THE COURT: After he re-worded his question, and I did the same, do you think you know what we mean ?
“THE JURY VENIREMAN: Yes, sir.
“THE COURT: Did you state that you did not have a preconceived fixed opinion?
“Would you have the seat that was just vacated, please?
“THE JURY VENIREMAN: Yes, sir. Do you want my name and address at this time?
“THE COURT: Yes, sir, I think this will be a good time for that.
“THE JURY VENIREMAN: Herbert Marshall Boyd, 756 Meadowbrook Drive, engineer, Alabama Power Company.
“THE COURT: All right. What is your name, please, ma’am?
“A JURY VENIREMAN: Mary Louise Nabors.
“THE COURT: Mrs. Nabors, if you will, please have a seat by Mr. Marlin, here (indicating).
“Leon Bradley, did you hear the question you were asked about capital punishment a few minutes ago?
“THE COURT: Do you have a feeling about capital punishment that, had you been on the regular panel, rather than the extra panel, that would cause you to raise your hand, that is, that type of preconceived opinion as to capital punishment?
“THE JURY VENIREMAN: I didn’t raise my hand.
“THE COURT: I know you didn’t. I am trying to find out if you have a fixed opin[318]*318ion. Did you hear the questions about whether or not you had a type of fixed opinion against capital punishment that would cause you, in the event of a finding of guilt for murder in the first degree, to vote against the death penalty, because of a preconceived opposition, or feeling, ■against the death penalty?
“Do you have such a feeling?
“A No, I don’t.
“THE COURT: Then, let me put it to you this way: If you were selected on this jury, and in the event there is a finding of guilt of murder in the first degree in this case, would you be willing to consider all the penalties provided by law, without being irrevocably committed, before the trial has begun, to vote for or against any penalty provided by law, regardless of the facts and circumstances that might emerge in the course of the trial and proceedings?
'“Would you be willing to do that?
“THE JURY VENIREMAN: No, sir.
“THE COURT: You wouldn’t? Then, you feel like you do have some type of preconceived — not some type, but you do have a fixed opinion against capital punishment?
“THE JURY VENIREMAN: Yes.
“THE COURT: You do ?
“MR. McDONALD: State challenges for cause.
“THE COURT: All right
“MR. CHURCH: Your Honor, we want to except to that ruling.
“THE COURT: All right. Let me be sure I understand:
“Would your feeling against or your opposition to the death penalty irrevocably compel you to vote against capital punishment ? Would it or wouldn’t it ?
“One time you said ‘No,’ and then you said ‘Yes.’ I have got to rule on it, and I don’t know how to rule.
“Let me ask you this: Do you have a fixed opinion, feeling, against punishment by death ?
“THE JURY VENIREMAN: I think your point is not giving—
“THE COURT: I can’t understand you. I don’t know what you said. You said, T don’t think — ,’ and I didn’t hear the next two or three words.
“Did any of you hear him?
“A JURY VENIREMAN: No, I don’t think so.
“THE COURT: You don’t think you have a fixed opinion against capital punishment ? “Let me ask you this: If you are selected as a member of this jury, and, in the event the jury should return a verdict, or a find • ing of guilty of murder in the first degree, and the two punishments were life imprisonment in the penitentiary, or death, do you feel like you would — that you have such an opposition to the death penalty that you would, under any circumstances, always vote against punishment by death because of that feeling, or do you feel you would be able to listen to the evidence and to the law, and the way everything took place, and, then, if there was a finding of guilt, would be willing to consider all of the penalties, without just disregarding any of them, without giving them any consideration, or thought?
“THE JURY VENIREMAN: I would rather listen to the evidence.
“THE COURT: You would rather listen to the evidence, and you think you' could fairly and impartially sit in judgment on what the punishment should be, without excluding any of it, is that right?
“THE COURT: Your name is Leon Bradley?
[319]*319“THE COURT: All right. Would you come up to the next row in front of you and take the seat that the lady just vacated ?
“Do you see that seat in front of you, that broad space?
“That is Leon Bradley.
“What is your name, please, ma’am?
“A JURY VENIREMAN: Judy Little-field.
“THE COURT: I believe you had your hand raised ? Would you come up and have a seat on this bench ?
“I understand there was a challenge on all four of them?
“MR. MCDONALD: Yes, sir.
“THE COURT: Henry Wayne Markham. Mr. Markham, you heard the questions that have been asked these past few jurors, concerning their feeling about capital punishment.
“Do you understand what I was asking them?
“THE COURT: Do you have such an opposition to capital punishment, or the death penalty, that would cause you to raise your hand on that?
“You do have an opposition to that, that I spoke of?
“THE COURT: All right. Please take the seat just vacated by Mrs. Littlefield.
“That is Henry Wayne Markham.
“Your name was Wright, wasn’t it?
“THE COURT: Would you please stand up?
“(Thereupon, the jury venireman stood up, following which the following proceedings were had and done:)
“THE COURT: You understood the questions I asked the jurors?
“THE COURT: Do you have that opposition to capital punishment I spoke of?
“THE COURT: You understood the rest of the questions, and you do have that type opposition to it?
“THE COURT: All right, take a seat, here (indicating).
“Mary Lou Olive, do you understand the-questions that I asked?
“THE COURT: Do you have an opposition to the type of punishment I spoke of?
“THE COURT: All right, take a seat on this bench, here (indicating).
“Now, let me ask you this: I am not suggesting anything, but, in the course of this type of questions sometimes a person understands a little better as we go along.. They get to thinking, and they say, T wish I had raised my hand.’
“I am not encouraging anything, but is there amything on this, that you have-thought over it and thought that your proper answer should be that you raise your hand on that question?
“All right, thank you.
“MR. CHURCH: May it please the Court, I would like the record to show our objection to the ruling of the Court on the challenge for cause.
“THE COURT: Yes, sir.
“MR. CHURCH: And our exception on the ruling.
“THE COURT: Yes, sir. All right, proceed, Mr. McDonald.
[320]*320“(Thereupon, further special questions were asked by Mr. McDonald, of the jury venire, to which there was no objection made, nor exceptions reserved, at the conclusion of which the following proceedings were had and done:)
“THE COURT: That’s all?
“MR. MCDONALD: Yes, sir.” (R. pp. .31-42)