Ex Parte Tomlin

I concur in the main opinion. I add that the nullification of this death sentence is necessary for another, independent reason.

The only aggravating circumstance claimed by the State and purportedly invoked by the trial court was not authorized by the applicable statutory provisions. This defect is jurisdictional.

On or about January 2, 1977 two victims were shot to death. Tomlin was indicted in 1978 for double murder under the then-existing § 13-11-2(a)(10), Ala. Code 1975, which provided that one of the categories of capital murder was "[m]urder in the first degree wherein two or more human…