¶1(dissenting):
¶2Robert Swain was convicted for rape and sentenced to death pursuant to Title 14, § 395, which recites:
“Any person who is guilty of the crime of rape shall, on conviction, be punished, at the discretion of the jury, by death or imprisonment in the penitentiary for not less than ten years.”
¶3This court affirmed in 1963. 275 Ala. 508, 156 So.2d 368.
¶4The Supreme Court of the United States affirmed in 1965. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.
¶5Swain’s subsequent application for writ of error coram nobis was denied by the trial court. This court affirmed in 1970. 285 Ala. 292, 231 So.2d 737.
¶6Swain applied to The Supreme Court of the United States for certiorari. That court granted the petition, and on July 26, 1972, issued to us a mandate which in pertinent part recites:
“WHEREAS, lately in the Supreme Court of the State of Alabama, . there came before you a cause between Robert Swain and the State of Alabama, No. 7 Div. 796, wherein the judgment of the said Supreme Court was duly entered on the' Fifth day of February A. D. 1970, as appears by an inspection of the petition for writ of certiorari to the said Supreme Court and the response thereto.
“AND WHEREAS, in the 1971 Term, the said cause having been submitted to the SUPREME COURT OF THE UNITED STATES on the said petition for writ of certiorari and response thereto, and the Court having granted the said petition:
“ON CONSIDERATION WHEREOF, it was ordered and adjudged on June 29, 1972, by this Court that the judgment of the Supreme Court of Alabama in this cause be vacated insofar as it leaves undisturbed the death penalty imposed, and that this cause be remanded to the Supreme Court of the State of Alabama for further proceedings. See Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972).
“NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ of certiorari notwithstanding.”
¶7See: Swain v. Alabama, 408 U.S. 936, 92 S.Ct. 2860, 33 L.Ed.2d 753.
¶8The opinion of The Supreme Court of the United States in Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744, recites:
“June 29, 1972. PER CURIAM.
“The appellant in this case was sentenced to death. The imposition and *127carrying out of that death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The motion for leave to proceed in forma pauperis is granted. The judgment is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and the case is remanded for further proceedings.” 92 S.Ct. 2845.
¶9Thus The Supreme Court of the United States has vacated the judgment against Swain in so far as the death penalty is imposed but has left standing the judgment of guilt. The question now presented is what procedure does the law require in fixing the punishment to be imposed on Swain.
¶10In Hubbard v. State, 290 Ala. 118, 274 So.2d 298, defendant • was convicted for murder in the first degree. The statute (Title 14 § 318) provides two alternatives in fixing the punishment for murder in the first degree, that is, death or imprisonment for life. When The Supreme Court of the United States struck down the death penalty, only one alternative remained, and that alternative is life imprisonment, which is clear and certain.
¶11In the instant case, the statute also provides for two alternatives, one is death and the other is imprisonment in the penitentiary for not less than ten years. Punishment by death now being stricken by The Supreme Court of the United States, the only remaining alternative is imprisonment for not less than ten years, but the number of years to be fixed is not clear or certain by any method of reasoning of which I am advised.
¶12As to Title 14, § 395, The Supreme Court of the United States, by its decision in Furman v. Georgia, supra, has held that part of the statute providing for punishment by death unconstitutional, and has in effect stricken from the statute the words “death or” so that the statute provides, in effect, that persons guilty of rape “ . . . shall, on conviction, be punished, at the discretion of the jury, by imprisonment in the penitentiary for not less than ten years.” After the effect of Furman v. Georgia, the statute still provides that punishment shall be fixed by the jury.
¶13The Supreme Court of Virginia has dealt with the problem before us in a case where the prisoner had been convicted of murder in the first degree and given a death sentence under a statute quoted by the court as follows:
“Section 18.1-22 of the Code provides:
“ ‘Murder of the first degree shall be punished with death, or by confinement in the penitentiary for life, or for any term not less than twenty years.’ ” Huggins v. Commonwealth, 213 Va. 327, 191 S.E.2d 734, 735.
¶14Among other things the court said:
"In Virginia, when the court sits without a jury, the trial judge both tries the issue of guilt and fixes the penalty; when the accused demands a jury, the jury performs both functions. Code §§ 19.1-192, -291 and -292. The right to have the jury perform both functions is a part of the right of trial by jury.
“We do not decide the extent of our authority under Article VI, § 6 of the Virginia Constitution and Code § 19.1-288 to modify a judgment order entered upon a sentence fixed by the trial judge or a jury. We merely conclude that this case should be and it is remanded for a new trial on the issue of punishment. This accords with the procedure we approved in Snider v. Cox, 212 Va. 13, 181 S.E.2d 617 (1971) and Hodges v. Commonwealth, 213 Va. 316, 191 S.E.2d 794, this day decided.” (191 S.E.2d at 736)
¶15On the same day in another case, the Virginia court delivered a consolidated opinion in two other cases in each of which the same defendant had been found guilty of murder in the first degree. In *128one case, the jury fixed defendant’s punishment at 99 years in the penitentiary and in the other case at death. The court concluded that the death penalty had been rendered invalid by Furman v. Georgia, supra, and, among other things, said:
“ . . . As we are compelled to follow the ruling of the Supreme Court on this question, we must now determine the procedure to be followed in this case and in other similar cases.
“We reject Hodges’s contention that he is entitled to a new trial in each case on the issues of guilt and punishment. There is no error in the judgment order entered on the jury verdict in Record No. 8005 finding Hodges guilty of murder in the first degree and fixing his punishment at 99 years for the killing of Ferguson. Furthermore, there is no error in that portion of the judgment ofder entered on the jury verdict in Record No. 8006 finding Hodges guilty of murder in the first degree for the killing of Watson. But the portion of the judgment order sentencing him to death in accordance with the jury verdict must now be set aside.
“Without deciding whether we have authority under Article VI, § 6 of the Virginia Constitution and Code § 19.1— 288 to modify the judgment order by reducing the death sentence to life imprisonment, as argued by the Attorney General, we conclude that this case (Record No. 8006) should be remanded for a new trial on the issue of punishment. We have recently approved this procedure where, ‘under newly-announced constitutional principles, a felon’s sentence has been set aside not because the jury that tried him could not constitutionally find him guilty, but because the jury as then constituted could not constitutionally impose the death sentence.’ Snider v. Cox, 212 Va. 13, 14, 181 S.E.2d 617, 618 (1971). See also Huggins v. Commonwealth, Va., 213 Va. 327, 191 S.E.2d 734, this day decided.
“Under the Constitution of Virginia the right to trial by jury in criminal cases is guaranteed. Va.Const. art. 1, § 8. Moreover, where a criminal case is tried by a jury the punishment shall be ascertained by it. Code § 19.1-291, -292. Here the jury fixed Hodges’s punishment for the Watson murder at the maximum permitted at the time of trial. Nevertheless, it would be sheer speculation for us to conclude that, if death had not then been a permissible punishment, the jury would have fixed the punishment at life imprisonment. The jury might well have agreed upon 99 years, as it did for the Ferguson murder.” Hodges v. Commonwealth, 213 Va. 316, 191 S.E.2d 794, 797.
¶16In Anderson v. State, (Fla.), 267 So.2d 8, the Supreme Court of Florida dealt with the instant question as it affected a number of prisoners convicted for rape. In pertinent part the court said:
“2. Those convicted of rape without a recommendation of mercy should be returned to the trial court so that a determination may be made as to whether the defendant should be resentenced to a term of years or life imprisonment.” (267 So.2d at 10, 11)
¶17Subsequently, the Florida court dealt with other prisoners under a death sentence, some for murder and some for rape. As pertinent, the court said:
“ . . . Our decision, however, for reasons set forth at length in Anderson, supra,was for this Court to correct the illegal death sentences and — as to the 27 persons convicted of murder — this Court imposed a sentence of ‘confinement in the State prison for the term of his natural life.’ Only the 13 persons in that group, convicted of' rape, were remanded to the circuit courts for resentencing. This was because each of those persons, if his crime was committed prior to January 1, 1972, is entitled to a hearing prior to re-sentencing; and may be sen*129tenced to imprisonment to life or for any term of years within the discretion of the Court. F.S. § 794.01 (1969), F.S.A.
“2. All of the members of the class of persons under sentence of death who have been convicted or rape are hereby sentenced to life imprisonment. The cases of these persons, however, are remanded to their respective circuit courts for the sole purpose of further consideration of this sentence, and each of such persons may, within 90 days from this date, file a motion with the trial court for mitigation of sentence. If such a motion is filed by any person, a hearing thereon may thereafter be held under F. R.P. Rule 3.780 to determine first the date of the crime for which the defendant stands convicted. If committed after January 1, 1972, the life sentence shall not be mitigated. See Anderson v. State, supra. If committed prior to January 1, 1972, the Court may conduct a hearing under Rule 3.780, F.R.P., for the purpose of inquiring into all factors relevant to sentencing and shall then resentence such person to a term of life imprisonment or a term of years, in the discretion of the court. The defendant has the right to be present at any such hearing and the right to retain counsel, or have counsel appointed if indigent. These rights may be waived in writing by a defendant.” In re Baker, (Fla.), 267 So.2d 331, 332, 335.
¶18It is noted that the court proceeded to pronounce sentence of life imprisonment, apparently authorized under Florida rules of procedure, with the right of the prisoner to file a motion for mitigation of sentence.
¶19In 1971, the Court of Criminal Appeals of Tennessee upheld the conviction of a defendant for murder in the first degree with punishment fixed at death. The court vacated the sentence of death because the requirements of Witherspoon v. Illinois, 291 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, had not been complied with in selecting the jury. The court said:
"... We, therefore, again affirm the validity of this first degree murder conviction and judgment of guilt; but vacate the punishment set and remand the case for a new trial by a new jury on the issue of punishment only.” Beaver v. State, (Tenn.), 475 S.W.2d 557, 561.
¶20In People v. Speck, (September 20, 1972), 52 Ill.2d 284, 287 N.E.2d 699, the Supreme Court of Illinois, pursuant to Furman v. Georgia, supra, set aside the death penalties imposed on the defendant under eight separate indictments charging him with the murder of eight young women in the City of Chicago. The court remanded the cases to the trial court with directions to conduct a new hearing in aggravation and mitigation and resentence the defendant.
¶21The question before us is an extraordinary one without precedent in this state. In Hubbard v. State, 290 Ala. 118, 274 So.2d 298, this court followed the course of fixing defendant’s punishment at life imprisonment, which was the only punishment provided by law after the Supreme Court had declared invalid the punishment of death. In the instant case, the only punishment which can now be imposed in Swain is imprisonment in the penitentiary, but the length of the sentence is not fixed by law but remains in the discretion of the jury.
¶22With the provision for the death penalty stricken, the statute under which defendant’s punishment is to be fixed, Title 14, § 395, expressly provides that any person guilty of rape “ . . . shall, on conviction, be punished, at the discretion of the jury, by imprisonment in the penitentiary for not less than ten years.” If the statute is to be followed, defendant’s punishment must be fixed by the jury at imprisonment for not less than ten years. For this court to say what term a jury will fix would be sheer speculation, as is ob*130served by the Virginia Court. Hodges v. Commonwealth, supra.
¶23In accordance with the statute, and the authorities from Virginia, Florida, Tennessee, and Illinois, I would remand the cause to the circuit court for a new trial on the issue of punishment. I am of opinion that such trial should be by jury. So much of the transcript of the testimony and proceedings in the first trial as may be necessary to show the nature of the offense charged and the circumstances under which it was committed should be permitted to be introduced in evidence, and such additional evidence as may be competent and relevant to the issue of punishment should be adduced.
¶24Being of the opinion hereinabove expressed I must respectfully dissent.