
    OPINION OF THE JUSTICES.
    No. 217.
    Supreme Court of Alabama.
    Sept. 2, 1975.
   By Senate Resolution 89 of the Senate of the State of Alabama in 1975 Regular Session, the Supreme Court of Alabama was requested to give an advisory opinion as to whether or not House Bill 212 which pertained to the death penalty would meet the constitutional test as set out in the case of Furman v. Georgia, 403 U.S. 952.

Opinion declined.

The Senate

State Capitol

Montgomery, Alabama

Dear Sirs:

We are in receipt of Senate Resolution 89 which reads, in part, as follows:

“BE IT RESOLVED BY THE SENATE OF ALABAMA, That we respectfully request the honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, H.B. 212.
“If enacted, would this bill meet the constitutional test as set out by the U. S. Supreme Court in the case of Furman v. Georgia, 403 U.S. 952, 91 S.Ct. 2282, 29 L.Ed.2d 863.”

Tit. 13, § 34, Code of Alabama 1940, Recompiled 1958, has been considered as privileging but not requiring the justices to give advisory opinions. Opinion of the Justices, 266 Ala. 370, 96 So.2d 752 (1957). We respectfully decline to render the requested advisory opinion for the reasons set forth below.

The U. S. Supreme Court has granted certiorari (419 U.S. 963, 95 S.Ct. 223, 42 L.Ed.2d 177) and carried over for reargument the case of North Carolina v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974). The question presented in that case is whether North Carolina’s imposition and carrying out of the death sentence for first degree murder constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Thus, the question propounded to us by the Senate is now pending for decision before the highest court in the land whose edicts are final and binding upon all.

The case of Johnny Harris v. State, Court of Criminal Appeals, 1 Div. 623, Baldwin Circuit Court No. 6699, concerning the constitutionality of Tit. 14, § 319, Code, supra, is now on appeal to the Alabama Court of Criminal Appeals. Tit. 14, § 319, provides that “[a]ny convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death.”

This court has refused to render advisory opinions in the past where it has appeared that the court would ultimately be called upon to decide the constitutionality of a materially identical act in an adversary proceeding. Opinion of the Justices, supra. Although Tit. 14, § 319, and the statute proposed by H.B. 212 are not identical, they both provide for a death penalty, and they are overlapping in their scope.

While the statutes being challenged in Fowler v. North Carolina, supra, and Harris v. State, supra, both differ in some respects from the one proposed by H.B. 212, the ultimate issue is the same— the constitutionality of the death penalty.

Moreover, we are of the opinion that a question of this importance; viz., life or death; should not be approached in the abstract. Indeed a question of this magnitude should be resolved in the context of an adversary setting, with an actual fact situation before us, fully briefed and argued to the court.

We therefore think it appropriate that we respectfully decline to render the requested opinion.

Respectfully submitted

HOWELL T. HEFLIN Chief Justice

PELHAM J. MERRILL

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RICHARD L. JONES

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY Associate Justices  