concurring and dissenting.
The mandatory death penalty for murder has been rejected as violative of the Eighth Amendment. In Woodson v. North Carolina, (1976) 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, it was held that:
*770“[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S., at 100, 78 S.Ct. at 597 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” 428 U.S. at 304; 96 S.Ct. at 2991.
Under our death sentencing statute the constitutional mandate that the character and record of the individual offender be considered by the sentencing judge is to be carried out in the search for and evaluation of mitigating circumstances. Indiana Code § 35-50-2-9(c) governing this part of the sentencing process states:
“(c) The mitigating circumstances that may be considered under this section are as follows:
(1) The defendant has no significant history of prior criminal conduct.
(2) The defendant was under the influence of extreme mental or emotional disturbance when he committed the murder.
(3) The victim was a participant in, or consented to, the defendant’s conduct.
(4) The defendant was an accomplice in a murder committed by another person, and the defendant’s participation was relatively minor.
(5) The defendant acted under the substantial domination of another person.
(6) The defendant’s capacity to appreciate the criminality of his conduct or to conform' his conduct to the requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.
(7) Any other circumstances appropriate for consideration.”
This part of the sentencing statute must be construed to encompass the constitutional mandate that the character and record of the individual offender be considered, and it must be emphasized and repeated that this part of the process does not involve a search for an excuse or justification for criminal conduct, but for knowledge of the person to the end that a judgment be made upon the question of whether the offender is the sort of person who should be put to death rather than put in jail.
The judge’s order before us, and quoted in full in the majority opinion, falls short of satisfying this constitutional mandate and the mandate of this Court in Judy v. State, (1980) Ind., 416 N.E.2d 95, that an express written and independent analysis of the defendant’s character and record be made. That part of the order which reflects the judge’s efforts in satisfaction of this mandate is as follows:
“The only possible mitigating circumstance which the court has given any thought to is the fact that the defendant was smoking marijuana and drinking beer while at the decedent’s residence prior to committing the crime. This carried no weight with the court, however, since the scheme had been devised by the defendant and co-defendant to rob the decedent prior to starting out on this adventure.
The reason for the imposition of the death penalty is that the court feels that any lesser sentence would depreciate the seriousness of the crime; and the court feels that the jury has expressed, on behalf of our society, a moral concern about crimes committed in our society which we consider to be atrocious crimes, and that this was a crime so heinous that the court feels that the jury expressed the belief that the only appropriate response for our society to. make to such a crime is ‘to fight fire with fire.’ ”
There is little or no consideration given in this writing to appellant’s character and record. To illustrate its incompleteness in this regard, one need only compare this order with the one considered and quoted in full in Brewer v. State, (1981) Ind., 417 N.E.2d 889, written by Judge Clement of the Lake Superior Court, Criminal division which utilizes several pages in disclosing the court’s consideration of the defendant’s background. Further evidence of the incompleteness is to be gleaned from the pre-sentence report which reveals the following and more about appellant:
*7711. He was twenty-one years old at the time of the killing.
2. Stealing has been his way of life since he was ten years old.
3. Using and selling contraband drugs has been his way of life since he dropped out of high school as a freshman.
4. His younger brothers are in trouble with the law.
5. He, his mother, and seven brothers and sister were abandoned by the father when appellant was eleven years old. They became destitute and lived in squalor on welfare payments.
6. Prior to abandoning the family entirely, his father would leave the family without explanation for several weeks at a time.
A life history of this sort does not necessitate the rejection of the penalty of death. But it does provide information which cannot constitutionally be ignored in giving due regard to the offender’s character, record, and amenability to rehabilitation. It is a mitigating circumstance, for the purpose of deciding between death and imprisonment, that the offender began to demonstrate the capacity to form serious criminal intent at the age of ten or eleven. The ten- or eleven-year-old who develops such a pattern of behavior, does so through the influence of others upon whom he is dependent or because of emotional disturbance, and without making the kind of choice warranting the severest moral condemnation.
Finally, I read the court’s final paragraph in the order, above, to apply a standard not applicable in making the choice of death, i.e., that “any lesser sentence would depreciate the seriousness of the crime”; and to report that his own feelings comport with those of the jurors, i.e., that the penalty of death is required here in order for society “to fight fire with fire”. This part of the court’s order is central to his decision, as he repeated in his second order following remand by this Court. It is no more nor less than an application of lex talionis, forbidden by the policy of the law in the sentencing statute, and contrary to the requirement of Art. I, § 18, of the Indiana Constitution that “The penal code shall be founded on the principles of reformation, and not of vindictive justice.” Judy v. State, supra (DeBruler, J., dissenting). See also Kanter, Dealing with Death, The Constitutionality of Capital Punishment in Oregon, 16 Wil-liamette L.Rev. 1 (Winter, 1979). It reflects the unconstitutional purpose to secure retribution and vengeance for appellant’s crime.
As the record fails to disclose that the judgment of the court to impose the death penalty was arrived at after giving due regard to the offender’s character, record, and amenability to rehabilitation, and as the record does disclose that the judgment was arrived at upon consideration of impermissible matter, I would not permit such judgment to stand.
This case should be remanded to the trial court to impose a determinate sentence on the murder count.
PRENTICE, J., concurs.