dissenting. While I concur in Divisions 1, 3 and 4 of the majority opinion I must dissent from Division 2 and the judgment of reversal in part with direction. I would affirm the death sentence in this case.
Under the Act of 1973 (Ga. L. 1973, pp. 159, 166), this court is required to determine: "(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other *838arbitrary factor, and (2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 27-2534.1 (b), and (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”
There is no evidence in this record that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.
The jury found that two statutory aggravating circumstances existed in the present case: The prior conviction of a capital felony and the commission of rape while engaged in the commission of another capital felony. Such findings were authorized by the evidence.
In determining whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases this court must consider both the crime and the defendant.
Under the provision of the 1973 Act, supra, this court has considered the following cases: Ford v. State, 227 Ga. 279 (180 SE2d 545); Watson v. State, 227 Ga. 698 (182 SE2d 446); Griffin v. State, 229 Ga. 165 (190 SE2d 61); Hobbs v. State, 229 Ga. 556 (192 SE2d 903); Lumpkin v. State, 228 Ga. 391 (185 SE2d 770); Fuller v. State, 228 Ga. 546 (186 SE2d 888); Allen v. State, 228 Ga. 859 (188 SE2d 793); McCrary v. State, 229 Ga. 733 (194 SE2d 480); Grantling v. State, 229 Ga. 746 (194 SE2d 405); Akins v. State, 231 Ga. 411 (202 SE2d 62); Miller v. State, 224 Ga. 627 (163 SE2d 730); Massey v. State, 229 Ga. 846 (195 SE2d 28). These 12 cases involve 14 separate defendants convicted of the offense of rape. Five of such trials took place prior to the enactment of the bifurcated trial procedure. Accordingly the records in these cases do not make it appear that the defendants there had prior records. In 4 of these 5 cases the death penalty was imposed under the unitary trial procedure where evidence of prior convictions could not be presented but in each case the victim was choked, beaten, cut, or otherwise tortured. In the remaining case tried under the unitary trial procedure, where a life sentence was imposed the defendant completed his purpose under threats without other injuries being inflicted upon the victim.
In the remaining 7 cases only one resulted in the death penalty. In that case the defendant not only had prior convictions but the victim was severely tortured.
In 3 of the remaining 6 cases the jury was instructed that they *839could return a death sentence but they failed to do so when it was shown that the defendant had no prior record. In the other 3 cases, while the defendant had a prior record, the jury was instructed that the maximum sentence which could be imposed was a life sentence, which maximum sentence was imposed.
As I review the records in these cases a pattern clearly develops, to wit: where no prior convictions could be considered if brutality or torture was involved the maximum sentence permitted by law was imposed but in the absence of such factors a lesser sentence was given the defendant.
In all cases tried under the bifurcated trial procedure now in use where a prior conviction was shown the defendant was given the maximum sentence permitted under the court’s instruction. Where no such prior conviction was shown the maximum sentence permitted by such instruction was not given.
Accordingly in the present case where evidence of a prior conviction of a capital felony was introduced and where the victim was tortured (by being locked in the trunk of an automobile and driven around for a period of time prior to the rape) I do not believe that the maximum sentence authorized by law is excessive or disproportionate to the penalty imposed in similar cases "considering both the crime and the defendant.”
I am authorized to state Mr. Justice Undercofler joins in this dissent.