concurring specially as to Division 6.
I cannot agree with the ratio decidendi in Division 6 of the majority opinion on the application of statutory aggravating circumstances in a death case.
The beginning point for me is the statute itself. That statute sets forth ten aggravating circumstances and then provides that the "... statutory instructions [aggravating circumstances] 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. The jury, if its verdict be a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt.” Code Ann. § 27-2534.1. *888(Emphasis supplied.) The question is whether this statute means that where a jury finds against the accused on only one of the circumstances this amounts to a finding that the evidence did not authorize a verdict of guilty beyond a reasonable doubt on the other charged aggravating circumstances, or whether it means that the jury just stopped their deliberations after finding one aggravating circumstance. The majority opinion appears to make the latter construction; common sense leads me to the former.
We must remember that the General Assembly of Georgia has set a very strict standard on double jeopardy under its Criminal Code by preventing a second prosecution where "there was a finding that the evidence did not authorize the verdict.” Code Ann. § 26-507 (d). The policy behind this provision is to prevent harassment of the accused by successive prosecutions. Marchman v. State, 234 Ga. 40 (215 SE2d 467) (1975); State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974). Would not this policy be even stronger where the subsequent prosecution seeks death rather than imprisonment? As I read this court’s opinions in Ward v. State, 239 Ga. 205 (236 SE2d 365) (1977) and Miller v. State, 237 Ga. 557 (229 SE2d 376) (1976), the state has one opportunity to find a defendant guilty of an aggravating circumstance which authorizes the death penalty. The rationale is that the failure of a jury to find on an aggravating circumstance which was put in issue in the judge’s charge is an implicit acquittal for that particular aggravating circumstance.
In my opinion, the trial court erred in submitting to the jury the two aggravating circumstances upon which the jury in the first trial had made an implicit acquittal. The next question is whether or not the error was harmless because the second jury also found the defendant guilty of a third aggravating circumstance — the same one for which the first jury found him guilty. I believe that the error in this case was harmless.
In Price v. Georgia, 398 U. S. 323 (2) (1970), the defendant was charged with murder in his first trial and was convicted of voluntary manslaughter. After a successful appeal, the case was retried. The defendant was again charged with first degree murder and was *889again convicted of voluntary manslaughter. The Supreme Court of the United States held that the voluntary manslaughter conviction could not stand because again submitting the issue of murder to the jury impermissibly infected the second trial. Chief Justice Burger, in reaching the conclusion that the error was harmful stated, "[W]e cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.” Id. at 331.
Price v. Georgia is, of course, a federal constitutional case, and I have been concerned merely with Georgia’s statutory requirements. By analogy, however, Price v. Georgia points to the conclusion that only harmless error occurred in this case.
In Price, the second jury faced three alternatives: guilty of murder, guilty of voluntary manslaughter, or not guilty. If the jury were divided, guilty of voluntary manslaughter might represent a compromise verdict. The impermissible charge on murder, therefore, created an option for the jury which prejudiced its deliberations. On the other hand, Redd’s jury in the sentencing phase faced two options: death or life imprisonment. No possible compromise existed which would produce a different sentencing result. The reasoning of Price v. Georgia is, therefore, inapplicable.
I concur in the judgment.