The opinion
On Rehearing
CATES, Judge.
In his application for rehearing the Attorney General asserts three propositions of law, viz.
“A reasonable time for legislative action should be allowed in situations requiring extensive study and deliberation and a court will not intervene in these matters until it is shown that further legislative delay is intollerable (sic).
White v. Crook, D.C., 251 F.Supp. 401 .
“The implied repeal of a merely directory statute cannot be a basis for also holding criminal statutes prescribing a type of punishment repealed by implication.
Keith v. State, 157 Ind. 376 , 61 N.E. 716 .
“There is no basis, under Alabama law, for an appellate court reducing or modifying a sentence imposed by a jury.
Scott v. State, 247 Ala. 62 , 22 So.2d 529 .”
First, White v. Crook, supra, as here cited related to a statute excluding women from juries. The creeping decree therein was a product of the prospective overruling doctrine.
Postponing finality of execution until the Legislature might again provide for electrocution at another prison is the type of indeterminateness which the New York Court of Appeals disapproved in Hartung v. People, 22 N.Y. 95, 105-107 . 1
*324 Second, we do not characterize § 348, T. 15, as a mere directory statute. Rather it is the means of conferring upon the executioner his immunity from a charge of murder, no small trifle.
§ 348 is specific; § 325 is general.
Third, as to Scott, supra, it relates only to the “reduction” of sentence. In our view, life imprisonment was the only consequence of a verdict of guilt of murder in the first degree from and after the time of the removal of the electric chair from Kilby Prison and after walls of that prison had been dismantled.
We again call attention to Aaron v. State, 40 Ala. 307 .
Finally, we consider that any act of the Legislature amending § 348, T. 15, to re-establish the electric chair would in effect be a bill of attainder on Brown.
“ * * * Bills of attainder were acts of Parliament whereby sentence of death was pronounced against the accused.” Drehman v. Stifle, 75 U.S. (8 Wall.) 595 at 601 , 19 L.Ed. 508 .
See also Cummings v. Missouri, 71 U.S. (4 Wall.) 277 at 323 , 18 L.Ed.2d 356 ; Cooley’s Constitutional Limitations (8th ed.) p. 536 et seq. Often a bill of attainder was ex post facto. See Gaines v. Buford, 1 Dana 481 at 510 .
To abate this appeal so as to make our final judgment depend on action vel non by the Legislature after a lapse of well over a year of any lawful place of electrocution would place on that body the burden of being the final arbiter of Brown’s punishment. Not only would this be contrary to the doctrine of separation of powers but also any act — as to Brown — would be a bill of attainder.
Delay in execution caused by the review under the Automatic Appeal Act is determinate. It ends after our judicial labor. This Court must decide; the Legislature need not.
The application for rehearing is therefore
Overruled.
ALMON, J., dissents.
. After discussing how a new law left a convict’s life at the governor’s mercy the opinion continues: “ * * * The mode of execution, according to the Revised Statutes, was by hanging (§ 25) ; but that section is repealed. How, then, is the convict to be executed? This law does not prescribe the manner. The com *324 mon law cannot be resorted to, for that system, as applied to this subject, was not in existence when this offence was committed, having been superseded by the Revised Statutes. The mode must, therefore, rest in the discretion of the Governor or the sheriff, and, for aught T see, the method prevailing in France, or Russia, or Constantinople or that which the English law formerly applied to convictions for heresy or petit treason, may be adopted. “ * « * When the legislature of 1S60 repealed that section of the statute without substituting anything as to the execution of a capital sentence in its place, they necessarily determined that it should no longer be obligatory for the court by its judgment, or the executive officers in the performance of their duties, to resort to that method of inflicting the punishment of death * * * ”