concurring and dissenting.
Concurring.
I concur in the judgment of the court setting aside the death penalty in this case, but my concurrence is for reasons different from those stated in the majority opinion. It is my view that Georgia’s new system permitting the imposition of the death penalty is in violation of the Eighth and Fourteenth Amendments to the United States Constitution in the light of Furman v. Georgia and Jackson v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346). The statutes involved in this case are Code Ann. §§ 26-2001, 27-2534.1, and 27-2537.
The opinion of the Supreme Court of the United States in Furman and Jackson was a one-paragraph per curiam opinion. Five Justices wrote concurring opinions, and the Chief Justice and three Justices wrote dissenting opinions. My study of this aggregation of legal literature leads me to conclude the following: (a) Two members of the court held that the death penalty is constitutionally impermissible, (b) Three members of the court *840held that a discretionary death penalty, meaning that the fact finder had the discretion to impose the death penalty or to impose a lesser penalty, is constitutionally impermissible, (c) Four members of the court held that a death penalty is not constitutionally proscribed.
Nevertheless, the magnitude of this five-four per curiam decision was pointed out by Mr. Justice Powell, one of the minority of four, when he said: "It is important to keep in focus the enormity of the step undertaken by the Court today. Not only does it invalidate hundreds of state and federal laws, it deprives those jurisdictions of the powers to legislate with respect to capital punishment in the future, except in a manner consistent with the cloudily outlined views of those Justices who do not purport to undertake total abolition. Nothing short of an amendment to the United States Constitution can reverse the court’s judgments. Meanwhile all flexibility is foreclosed. The normal democratic process, as well as the opportunities of the several states to respond to the will of their people expressed through ballot referenda (as in Massachusetts, Illinois, and Colorado), is now shut off.”
After the Furman and Jackson decisions, the Court of Appeals of Maryland in the case of Bartholomey v. State, 267 Md. 175 (297 A2d 696), said: "We entertain not the slightest doubt that the imposition of the death sentence under any of the presently existing discretionary statutes of Maryland which authorize, but do not require, that penalty is unconstitutional under Furman as violative of the Eighth and Fourteenth Amendments to the Federal Constitution. In other words, we think the net result of the holding in Furman is that the death penalty is unconstitutional when its imposition is not mandatory. [Cits.] That Furman invalidates all death penalties imposed pursuant to discretionary statutes is so, without regard to the nature of the offense, the particular circumstances under which the crime was committed, or the particular procedure followed in imposing the death sentence. Indeed, included among the 120 cases in which the Supreme Court remanded for further proceedings in light of Furman were cases involving murders of law enforcement officers (as in Bartholomey), mass killings, and aggravated rapes.”
I am convinced that the Georgia statutes involved in this case authorize nothing more and nothing less than the discretionary imposition of the death penalty by the fact-finder. Although one or more of the ten statutory aggravating circumstances may be present and acknowledged, the fact-finder, whether it be judge or *841jury can still decline to impose the death penalty. Code Ann. § 27-2534.1 (c) merely says that the death penalty shall not be imposed unless at least one of the statutory aggravating circumstances is present. There is no "requirement” that the death penalty be imposed if one or more of the statutory aggravating circumstances are present. It is conceded that in this case two of the statutory aggravating circumstances spelled out in the statute are present. Yet this court, upon review, has exercised its discretion pursuant to a nebulous measurement that I am unable to understand and had set aside the death penalty imposed by the fact-finder in this case.
The Georgia statutes involved in this case permit the arbitrary and discretionary imposition of the death penalty. A judge or jury can find one or several or all of the statutory aggravating circumstances present in a case and still decline to impose the death penalty. In a rape case of the most aggravated type, the jury can, in its discretion, and even though the statutory aggravating circumstances are found to be present, impose either the death penalty or a life sentence or a sentence of from one to twenty years. If the jury in such a case arbitrarily declines to impose the death penalty and imposes one of the two lesser penalties authorized by law, then that ends the matter. There is no review of the sentence in such a case, and the state cannot appeal, contending that the death penalty should have been imposed by the fact-finder.
I acknowledge that our judicial system and the over-all enforcement of the criminal law is pervaded by discretion. However, as I read Furman and Jackson, the Eighth Amendment does not permit the exercise of a discretion that extinguishes one man’s life and permits another man to live, both of whom have committed exactly the same crime.
I would therefore hold that the current Georgia statutes authorizing the imposition of the death penalty have created a "discretionary system” as opposed to a "mandatory system” for imposing this ultimate penalty, and these statutes are unconstitutional. I think that the imposition of the death penalty in this case was constitutionally impermissible, and I concur in the judgment of the court setting it aside.
Dissenting.
I dissent from that portion of the court’s judgment that remands the case to the trial court for re-sentencing procedures and declines to grant the appellant a new trial.
The record in this case reflects that the crimes with which the *842appellant was charged occurred on April 5, 1973; counsel was appointed for him on April 9, 1973; indictments were returned against him on April 17; 1973; his trial on the four charges began on April 24, 1973; and sentences were imposed on April 27, 1973.
On April 20, 1973, the appellant’s attorney served subpoenas on the County Board of Registrars and upon the County Jury Commissioners, and a portion of the subpoena served on the latter was as follows: "You are hereby informed that in the interest of time you will be asked the following questions: the number of jurors on your Grand Jury panel that are white; the number of jurors on your Grand Jury panel that are black; the number of jurors on your Grand Jury panel that are male; the number of jurors on your Grand Jury panel that are female. Also, you will be asked the number of jurors on your petit or trial jury panel that are white; the number of jurors on your trial or petit jury panel that are black; the number of jurors on your petit or trial jury panel that are male; and the number of jurors on your petit or trial jury panel that are female.”
On April 24, 1973, appellant’s counsel filed a motion for change of venue on several grounds. Among them was the contention that females and blacks were systematically excluded from the grand jury and from the trial jury in Wayne County. The motion alleged that there were only three females on a Grand Jury of twenty-two persons that returned the indictments; that there were only two blacks on the Grand Jury of twenty-two persons that returned the indictments; that there were only seven females on the trial jury of one hundred persons impaneled; and that there were only two blacks on the trial jury of one hundred persons impaneled.
Prior to the commencement of the trial on April 24, a hearing was conducted on the motion for change of venue. The subpoenaed county officials could not testify as to the statistical make-up of the grand jury and the trial jury in Wayne County. The apparent reason for their inability to provide this information was that they had been subpoenaed on the preceding Friday, the county offices were closed on the preceding Saturday and Sunday, and they had not had time preceding their testimony to secure such information from the county records.
During the course of the hearing and following the failure to elicit the statistical information from the county officials, appellant’s counsel then made the following motion: "Your Honor, in view of the fact that this information of this nature is available in other counties, and as defense counsel for the accused, it seems *843a little strange to me that our Board of Registrars do not have it in this county, and in all fairness to my client, I will have to again request the Court to instruct the Chief Registrar, and the other members of the Board of Registrars that are able to serve, to look into this matter.”
The trial judge denied this request, and appellant’s counsel then stated: "Well, just as a matter for the record, we take exception to the ruling for the following reasons, one is the limited time in which I, as defense counsel, had to get prepared for the trial of this case; and the fact that the defendant was in Reidsville, which required trips to Reidsville; and participated in other court cases to which I was appointed; and the further ground that it occurs to me that the Board of Registrars, the information that I have asked is the kind that should be kept current; and on those grounds and for those reasons I take exception to the court’s ruling as a matter of record.”
Following this hearing the appellant was arraigned on the four charges and the trial began.
While the burden is on the accused to show that a grand jury or trial jury is unconstitutionally assembled because of systematic exclusion of certain groups or classes, it seems to me that under the circumstances reflected in this record appellant’s counsel did about all that it was possible for him to do in the short time between his appointment and the beginning of the trial. At the least, appellant’s counsel should have been allowed additional time to prove the alleged unconstitutional composition of the grand jury which had indicted the appellant and the trial jury that was going to hear his case.
The short elapse of time, only eighteen days, between the commission of the crimes charged and the beginning of the trial convinces me, especially in view of the written motions filed by appellant’s counsel, that the state’s insistence upon the trial of this case on April 24,1973, was a denial of appellant’s right to have his appointed counsel have sufficient time to properly prepare and present appellant’s case.
I would therefore reverse the judgments below and remand the case to the trial court for a new trial, specifically directing that appellant’s counsel be allowed time and an opportunity to prove unconstitutional jury composition if he can.
For the reasons stated I concur in the judgment of the court prohibiting the death penalty in this case, but I dissent from the judgment of the court denying the appellant a new trial.