dissenting.
As Justice Rehnquist has suggested, courts should frequently (if not always) examine the actual text of the Constitution.1
The double jeopardy clause of the Fifth Amendment provides: “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. ...” As the majority recognizes, this *626provision is applicable to the sentencing phase of death penalty cases which are “punishment trials” under the Missouri and Georgia statutes. Bullington v. Missouri, - U.S. - (101 SC 1852, 68 LE2d 270) (1981).
Reading the double jeopardy clause, Godfrey has been “subject for the same offense to be twice put in jeopardy of life.” There is, of course, an exception where the defendant obtains a retrial based upon trial error (as opposed to insufficiency of the evidence). The majority sees the defect in the defendant’s first trial as an incomplete verdict. That incomplete verdict resulted from the jury’s failure to find depravity of mind of the defendant.2 That is, the jury found no evidence of depravity of mind. Thus, double jeopardy applies.
If further analysis is necessary, Code Ann. § 27-2534.1 (c) provides: “The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation.” At the first trial, the judge determined that aggravating circumstance (b) (7) was warranted by the evidence. Although erroneous, the judge determined that aggravating circumstance (b) (2) was not warranted by the evidence. “Having received ‘one fair opportunity to offer whatever proof it could assemble,’ [cit.] the State is not entitled to another.” Bullington v. Missouri, supra, 68 LE2d 283. In light of Bullington, I must retract my concurring opinion in Davis v. State, 242 Ga. 901, 910 (252 SE2d 443) (1979).
Because I dissent to division one of the majority opinion, I must also dissent to division four. See Abney v. United States, 431 U. S. 651 (97 SC 2034, 52 LE2d 651) (1977). In my view, because “the double jeopardy clause protects an individual against double trials as well as double punishments . . .” (majority opinion), Code § 6-701 is constitutionally deficient insofar as orders overruling pleas of double jeopardy are concerned and, until this deficiency is rectified, judges should certify interlocutory appeals of orders overruling pleas of double jeopardy under Code § 6-701 (2).
For the forego ing reasons, I respectfully dissent to divisions one *627and four of the majority opinion and to the affirmance of the death penalty.
Snead v. Stringer, - U. S. - (50 US LW 3345) (1981) (Justice Rehnquist, joined by the Chief Justice and Justice O’Connor, dissenting to the denial of certiorari.)
Aggravating circumstance (b)(7) requires the jury to find that “(I) The offense of murder was outrageously or wantonly vile, horrible or inhuman (II) in that it involved (A) aggravated battery to the victim, (B) torture to the victim, or (C) depravity of mind of the defendant.” Hance v. State, 245 Ga. 856, 860 (268 SE2d 339) (1980), cert. den. - U.S. - (101 SC 796) (1980). The trial judge charged the jury as to Code Ann. § 27-2534.1 (b) (7). The district attorney told the jury no torture or aggravated battery was involved and the jury found only that the offense was “outrageously or wantonly vile, horrible and inhuman” thereby failing to find depravity of mind.