# Ex Parte Kyzer

> Supreme Court of Alabama · March 6, 1981 · 399 So. 2d 330

URL: https://www.frixlaw.com/law-library/cases/9937423

## Case

- **Full name:** Ex Parte Dudley Wayne Kyzer. (Re Dudley Wayne Kyzer, Alias v. State of Alabama).
- **Court:** Supreme Court of Alabama
- **Decided:** March 6, 1981
- **Citations:** 399 So. 2d 330
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Jones, Maddox
- **Cited by:** 194 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Ex Parte Stephens, 982 So. 2d 1148 (2006).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9937423

## How later opinions describe it (automated extraction)

- recognizing as “an anomaly” in the former capital offense statutes that “there [wa]s a corresponding aggravating circumstance for most, but not all, of the aggravated offenses”
- holding that the aggravating circumstance EHAC "was intended to apply to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.”

## Opinion text

I concur in the result of the opinion to reverse and remand. I acknowledge its scholarly effort to deal with the aggravating circumstance issue at the sentencing hearing on remand to the trial court; but I strongly disagree with both its premise and its conclusion on this issue.
The concluding portion of the sentencing provision (§ 13-11-4) states: *Page 340
"If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentence hearing, which shall at least include the following:
"(1) One or more of the aggravating circumstances enumerated in section 13-11-6, which it finds exists in the case and which it finds sufficient to support the sentence of death; and
"(2) Any of the mitigating circumstances enumerated in section 13-11-7 which it finds insufficient to outweigh the aggravating circumstances."
By failing to heed the plain, clear meaning of these words, the majority opinion either ignores them or superimposes its policy judgment upon the exclusive legislative prerogative. To judicially modify the Death Penalty Act to uphold its constitutionality and effectuate its express purpose is one thing; to alter its clearly defined statutory scheme, in absence of constitutional restraints, is entirely another.
Personally, I thought Beck brought us dangerously close to the "cliff's edge" in the separation of power dichotomy. Surely, the constitutional underpinning supportive of the judicial weight of Beck is lacking here; and without it, we have just cast ourselves over the brink.
TORBERT, C.J., and ADAMS, J., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9937423. Public record. Not legal advice.