(concurring) :
With the main opinion, I concur; and agree that the trial court was justified in believing there to be no death penalty, (for the reason therein stated), thus, accepting defendant’s election to waive a jury and be tried for murder in the second degree. Defendant was tried and convicted prior to the enactment of the Utah Criminal Code, effective July 1, 1973.
However, I am constrained to observe that defendant was represented at trial by one appointed counsel and on this appeal by another appointed counsel — both of whom appear to have done well. I, respectfully, advance the view that counsel on appeal could, rightly, believe that Sections 77-27-2 and 76-30-4 were designed by the legislature to have meaning and, if they were, to have such surveyed by this court. Rather, than denigrate such effort, it seems such should be recognized as industry in giving a person the defense to which he is entitled — a quality to be encouraged.