Opinion
6 Div. 594.
September 25, 1973.
Michael J. Romeo, Birmingham, for petitioner.
No appearance for the State.
Brown has filed a petition for a writ of error alleging that his death sentence for first degree murder is an error of law apparent on the record under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L. Ed.2d 346.
Brown's former case on appeal may be found in 288 Ala. 680, 264 So.2d 549, 552, 553.
Technically, we should issue the writ, have the record brought up and pass upon it to ascertain what every one knows, to wit: that Brown is under sentence to be electrocuted. Inasmuch as the record on appeal, supra, contains the circuit court's minute entry showing the death sentence, we pass over the steps of asking for and receiving a formal certification. See Ward v. Williams, 270 Ill. 547, 110 N.E. 821; Cook v. City of Austin, 161 Tex. 294, 340 S.W.2d 482.
At this point in time, the death penalty cannot be carried out. Furman v. Georgia, supra. Guided by our Supreme Court in Hubbard v. Alabama, 290 Ala. 118, 274 So.2d 298, and related cases, the sentence of death imposed upon appellant is vacated and set aside. The sentence is corrected to provide that Samuel Brown, alias, be imprisoned in the state penitentiary for a term of his natural life. The Clerk of this Court shall furnish a certified copy of this order to the Clerk of the Circuit Court of Jefferson County, and the Clerk of that Court shall issue a commitment in this case based upon this sentence of life imprisonment and shall forward the commitment to the Board of Corrections.
Judgment modified.
All the Judges concur.