dissenting.
In his second sentencing hearing,1 Mark Hopkinson was sentenced to death under Wyoming’s capital-punishment statutes, the pertinent controversial parts of which are contained in § 6-4-102, W.S.1977.2 Many of the errors that were committed in the *92first sentencing proceeding have been made again.3
Among his various other contentions, Hopkinson argues, and I agree, that his sentence to death should be reversed by this court for the following reasons:
The admission into evidence of nonstatu-tory aggravating circumstances or aggravating circumstances not supported by the evidence violated appellant’s rights to due process of law, thus rendering § 6-4-102(h)(vii), W.S.1977 unconstitutional as applied;
The submission to the jury of those aggravating circumstances deemed inapplicable in the first penalty hearing violated appellant’s constitutional protection against double jeopardy;
The death-penalty provisions of the statutes of the state of Wyoming violate Art. 1, § 15 of the Wyoming Constitution.
It is essential to the consideration of my dissenting position in this appeal that these factors be remembered:
First, in the second death-penalty trial, the following aggravating circumstances were offered for jury consideration, and the following answers were returned:
“1. The murder was committed by a person under sentence of imprisonment.
Yes JL No_
“2. The defendant was previously convicted of another murder in the first degree.
Yes X No_
“3. The murder was committed for the purpose of avoiding or preventing a lawful arrest.
Yes X No_
“4. The murder was committed for pecuniary gain.
Yes X No_
“5. The murder was especially heinous, atrocious or cruel.
Yes X No_”
In the first sentencing hearing, the jury was permitted to consider aggravating cir*93cumstances Nos. 3 and 4 above, and that jury found that they were not present. Both juries were, of course, contemplating the same facts — namely, those facts which resulted in a verdict of guilty of murder in the first degree, in the first phase of the bifurcated proceeding.
In the second sentencing proceeding, all mitigating circumstances described in § 6-4-102(j)(i), (ii), (iii), (iv), (v), (vi) and (vii), supra n. 2, were offered for the jury’s consideration, each of which received a negative response. However, in reply to the court’s invitation to list
“[a]ny other mitigating circumstances.
(Here set forth in writing any other mitigating circumstances you may find to exist in this case. If there is insufficient room, additional paper will be provided for you.)
Yes_ No_”
(Emphasis added.),
the jury answered in one of its members’ handwriting, as follows:
“8. The torture of Jeff Green may not have been ordered by Mark Hopkinson
Yes_ No X
“9. Actions of Mark Hopkinson helped save the life of a prison guard
Yes X No_”
Therefore, no matter what interpretation we place upon “Mitigating Circumstance” # 8 above (see n. 20 infra), the jury found one other mitigating circumstance against which it was obliged to balance the aggravating circumstances that it also found to be present.4
Second, in the first appeal we remanded for a new sentencing hearing for the reason that the trial court had added to the aggravating-mitigating balancing process aggravating circumstances which were unsupported by evidence. I would hold that in this appeal the trial court has done the same thing and thus has committed the same error.
We said in the majority opinion of Hopkinson v. State, Wyo., 632 P.2d 79, 171-172 (1981):
“When we do not know whether the result of the weighing process would have been different had the impermissible aggravating factor not been present and where a man’s life is at stake, we must return the case to the trial court for a new sentencing trial.”
Third, at the second sentencing trial two of the aggravating circumstances which had been submitted to the first jury and found nonexistent in the first sentencing hearing were again submitted to the jury, based upon the same facts, and were, in the second sentencing hearing, found to have been present. In the first sentencing proceeding, the jury was asked whether, in its judgment, the Green murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an unlawful escape from custody and whether the murder was committed for pecuniary gain. To each of these inquiries the first jury responded that these two aggravating circumstances were not applicable to the Green murder. In the second sentencing hearing, a different jury was given the same fact situation and the same two aggravating circumstances to consider and this jury responded that these twice-submitted aggravating circumstances were applicable to the Green murder. This second submission is to twice place the defendant in jeopardy in violation of his Constitutional rights5 as guaranteed by the Fifth Amendment to the Federal Constitution and Art. 1, § 11 of the Wyoming Constitution.6
*94THE SUBMISSION OF AN IMPERMISSIBLE AGGRAVATING CIRCUMSTANCE
“The murder was especially heinous, atrocious or cruel.” § 6-4-102(h)(vii), W.S. 1977.
“ * * * We must not pile conjecture upon conjecture and posit the decision of life or death upon a pyramid of guesses.” People v. Terry, 61 Cal.2d 137, 37 Cal.Rptr. 605, 617, 390 P.2d 381, 392, cert. denied 379 U.S. 866, 85 S.Ct. 132, 13 L.Ed.2d 68 (1964).
Providing there is evidence to support it, one of the aggravating circumstances that the sentencing jury may consider in a capital punishment case under Wyoming law is: “[t]he murder was especially heinous, atrocious or cruel.” Section 6-4-102(h)(vii), W.S.1977. There is no doubt whatever that the murder with which we are here concerned can and must be described in this fashion. However, the law requires that, in order for this type of murder to warrant the submission of this particular aggravating circumstance to the sentencing authority for death-penalty deciding purposes, there must be legally acceptable evidence capable of establishing, beyond a reasonable doubt (§ 6-4-102(e)), the fact that the defendant ordered or participated in the torturous aspects of the killing. His is the culpability which must be measured. Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), discussed infra. Without such evidence, the submission of the heinous-atrocious-or-cruel aggravating circumstance to the jury — especially in a fact situation where the torture was so violently inhuman and the evidence of which is so patently inflammatory — is viola-tive of the defendant’s Eighth and Fourteenth Amendments rights. This is so because there is nothing in the words of the controversial aggravating circumstance which — -standing alone — implies an inherent restraint upon the arbitrary and capricious infliction of the death sentence under the directive of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh. denied 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163 (1972) and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, reh. denied 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).7 In fact, there is nothing in the words “The murder was especially heinous, atrocious or cruel” which would even imply that the defendant must be responsible for the torture which suggests this type of killing.
In the first Hopkinson appeal, I said in my separate concurring opinion that I would hope that this particular statutory circumstance would not again be given over to sentencing-jury consideration.8 In that opinion, I commented that this aggravating circumstance was overbroad as applied and I warned against giving it again.9
*95The heinous-atrocious-or-cruel aggravating circumstance was injected into the balancing process again, however, and it continues to be my opinion that the submission — in the circumstances of this case— constitutes reversible error, for the reason that there is no evidence and thus insufficient evidence to establish beyond a reasonable doubt (§ 6-4-102(e)) that Hopkinson was in any way associated with the torture of Green. As I said in the concurring part of my opinion in Hopkinson v. State, supra, 632 P.2d at 174:
“Mr. Justice White, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), spoke to the obligation of the Supreme Court of Georgia to oversee the application of the statutory standards in a manner which would comport with the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), reh. denied 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163. He said:
“ ‘In considering any given death sentence on appeal, the Georgia Supreme Court is to determine whether the sentence imposed was consistent with the relevant statutes — i.e., whether there was sufficient evidence to support the finding of an aggravating circumstance. * * * ’ (Emphasis added.) 428 U.S. at 223, 96 S.Ct. at 2948.”
If I am correct in my assumption that there is insufficient evidence to support the tender of the heinous-atrocious-or-cruel aggravating circumstance, it is then as though the jury had been permitted to consider a nonstatutory aggravating factor. This is — by statute — impermissible.10
Submission of an Improper Aggravating Circumstance Requires Reversal
The majority of the court, in this appeal, concede that an improper aggravating circumstance may not be injected into the balancing process with authorized aggravating circumstances. At 664 P.2d 60, the court says:
“This court observed in the first Hopkin-son opinion that § 6 — iH02(h), supra, fn. 7, specifically limits the aggravating circumstances to those listed. 632 P.2d at 157. It was also there recognized that we must not compromise the weighing process between permissible aggravating circumstances and mitigating circumstances. The scales must not be tipped by impermissible factors leaving us in a quandary as to what the jury would have done had impermissible factors not been present. 632 P.2d at 170-172.
“ * * * We accept the proposition that improper aggravating circumstances cannot go into the calculus of the decision of the sentencing authority.”
This conclusion is supported by the current law on the subject. In Stephens v. Zant, 631 F.2d 397, 406 (5th Cir.1980), cert. denied 454 U.S. 1035, 102 S.Ct. 575, 70 L.Ed.2d 480, a capital punishment case, the court said:
“The question presented * * * is whether the death penalty was invalid under the Constitution because it was imposed when one of the aggravating circumstances was later held to be unconstitutional even though there were two other aggravating circumstances, either of which by itself would be legally sufficient to permit the jury to impose the death penalty and as to both of which there is no uncertainty.
* iff * * * *
“It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors *96believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having a substantial history of serious assaultive criminal convictions, an invalid ground. The presence of the unconstitutionally vague circumstance also made it possible for the jury to consider several prior convictions of petitioner which otherwise would not have been before it. The instruction on the invalid circumstance may have directed the jury’s attention to those convictions. It cannot be determined with the degree of certainty required in capital cases that the evidence of those convictions, together with the instruction, did not make a critical difference in the jury’s decision to impose the death penalty-
“We hold that the jury’s discretion here was not sufficiently channeled, see Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and that the process in which the death penalty was imposed in this case was not ‘rationally reviewable.’ Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990. See also Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. Petitioner’s death sentence therefore cannot stand.”
The North Carolina Supreme Court has also acknowledged the impropriety of affirming a death sentence after one aggravating circumstance submitted to the sen-tencer is invalidated. State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). The court there held that in the sentencing hearing of a defendant convicted of felony murder the jury had improperly been permitted to consider the underlying felony as an aggravating circumstance. Holding that the error required resentenc-ing, the court noted:
“We are unable to say that under the circumstances of this particular ease the trial judge’s submission of the issue concerning the underlying felony constituted harmless error. Had the jury not considered the underlying felony as an aggravating circumstance, it may well have decided that the remaining aggravating circumstances were not sufficiently substantial to call for imposition of the death penalty.” 257 S.E.2d at 568.
See also Bufford v. State, Ala.Cr.App., 382 So.2d 1162, 1174-1185 (1980), reh. denied (1981).
Similarly, the Florida Supreme Court has said that where one aggravating circumstance is invalidated,
“ * * * regardless of the existence of other authorized aggravating factors we must guard against any unauthorized aggravating factor going into the equation which might tip the scales of the weighing process in favor of death * * *.
******
“Would the result of the weighing process by both the jury and the judge have been different had the impermissible aggravating factor not been present? We cannot know. Since we cannot know and since a man’s life is at stake, we are compelled to return this case to the trial court for a new sentencing trial at which the [improper] factor * * * shall not be considered. See Miller v. State, 332 So.2d 65 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976). This result is dictated because, in order to satisfy the -fequire-ments of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the sentencing authority’s discretion must be ‘guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.’ (Emphasis supplied.) Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913.” Elledge v. State, Fla., 346 So.2d 998, 1003, reh. denied, - U.S. -, 103 S.Ct. 771, 74 L.Ed.2d 984 (1977).11
*97See also Menendez v. State, Fla., 368 So.2d 1278, 1282 (1979):
“There is, therefore, only one properly found aggravating circumstance and one mitigating circumstance. Since the trial judge has committed error in considering matters outside the permissible range of legal standards set by the statute, and because it is impossible for us to evaluate the weight given by the trial judge to those factors which were proper to consider in imposing the death penalty, we can only vacate the sentence of death and remand the case for resentencing.”
Properly analyzed, the situation in which an appellate court invalidates one but not all of the aggravating circumstances found by a death-sentencing jury (or trial court) is precisely analogous to the situation in which the appellate court finds that a general verdict of guilty has been returned against a criminal defendant by a jury instructed upon alternative theories of conviction, one but not all of which permitted guilt to rest upon an unconstitutional ground. Under Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed.2d 1117, 73 A.L.R. 1484 (1931), and its progeny, such a conviction must be reversed. In Strom-berg, the defendant had been tried under a statute and jury instructions making it a criminal offense publicly to display a red flag for any of three enumerated purposes. The Supreme Court held that the description of one of the enumerated purposes violated the First Amendment. Even though there were alternative grounds of unquestioned constitutionality upon which the jurors might have based their general verdict, the Court refused to let the verdict stand:
“ * * * The verdict * * * did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. * * [T]he necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.” 283 U.S. at 367-368, 51 S.Ct. at 535.
In support of the impropriety of submitting unauthorized aggravating circumstances to the sentencing jury — the error which brought on reversal in the first Hopkinson appeal and which should have the same result here — I point to Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981), where the Fifth Circuit had under consideration the question which asks whether the capital defendant’s Eighth and Fourteenth Amendments rights had been violated where the trial court had balanced statutory and non-statutory aggravating circumstances with mitigating circumstances while weighing the life-or-death sentencing decision. The court held that the insertion of nonstatuto-ry aggravating circumstances into the formula resulted in the deprivation of the defendant’s constitutional rights. The author of the Wainwright opinion wrote:
“ * * * ‘[0]ur task is not restricted to an effort to divine what motives impelled [this] death penalt[y]. Rather, we deal *98with a system of law and of justice that leaves to the uncontrolled discretion of judges and juries the determination whether defendants committing these crimes shall die or be imprisoned.’ Furman v. Georgia, 408 U.S. 238, 253, 92 S.Ct. 2726, 2734, 33 L.Ed.2d 346 (Douglas, J. concurring). Guarding against the arbitrary and discriminatory imposition of the death penalty must not become simply a guessing game played by a reviewing court in which it tries to discern whether the improper nonstatutory aggravating factors exerted a decisive influence on the sentence determination. The guarantee against cruel and unusual punishment demands more.
“In short, appellant’s argument in this case seeks this court’s approval of a practice that violates the spirit, if not the letter, of Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In Proffitt the Supreme Court held Florida’s death penalty statute constitutional on its face inasmuch as it appeared to provide specific and detailed guidance to the judge and jury at the sentencing stage. We are bound to disapprove of the trial court’s ignoring the limitations imposed by the statute itself and increasing rather than decreasing the risk that the death penalty will be imposed in an arbitrary and capricious manner through the introduction of nonstatutory aggravating circumstances. The Supreme Court of Florida is, properly, the tribunal to rule on that state’s statutory requirement. Here, however, the limitations of the statute make the death penalty constitutional. Ignoring those limitations thus implicates the constitution.
“Because the state trial court committed constitutional error in admitting evidence of and permitting jury consideration of nonstatutory aggravating circumstances, Henry’s death sentence must be vacated." (Emphasis added.) 661 F.2d at 59-60.
Elledge v. State, supra, is remarkably similar to the case at bar' wherein the sentencing jury was permitted to consider our § 6-4-102(h)(vii) aggravating circumstance when there was no evidence to support it. In Elledge the judge (who does the sentencing under the Florida statute) accepted into the balancing process a statutory aggravating circumstance which is the same as our § 6 — 4—102(h)(iii),12 when there was no evidence to support it. That is — there was no supporting evidence in the sense that the judge took into account the defendant’s commission of a crime which had been perpetrated after the one for which he was being tried. The Supreme Court of Florida identified the consideration of this unauthorized factor by the sentencing authority as constituting the injection of a nonstatu-tory aggravating circumstance. The court said:
“Admission of evidence of the Gaffney murder is proscribed by our decision in Provence [v. State, 337 So.2d 783 (Fla.1976) ], because the charge had not resulted in a conviction at the time of the trial in the instant case. It was, therefore, a nonstatutory aggravating factor. But was the error harmless because of the lack of objection and the existence of substantial additional aggravating circumstances? We believe not.” (Emphasis added.) 346 So.2d at 1002.
As noted supra, the Florida Supreme Court went on to hold in Elledge that once an unauthorized aggravating circumstance is placed in the weighing process the case must be reversed because a court cannot know what effect the improper factor had on the decision to impose the death sentence. Elledge v. State, supra, 346 So.2d at 1003.
It is Defendant’s Heinousness, Atrociousness or Cruelty That § 6-4-102(h)(vii), W.S.1977 Governs
It is to be remembered that Hopkinson was found guilty of procuring the murder of Green based upon circumstantial evidence only. In the second sentencing proceeding, the trial judge gave the especially-heinous-atrocious-and-cruel aggravating circumstance together with the following instruction, which reads:
*99“INSTRUCTION NO. 10
“One of the aggravating circumstances set forth in this case is that the murder was especially heinous, atrocious or cruel. To assist you in your evaluation of this aggravating circumstance, heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included in this circumstance are those capital crimes where the actual commission of the murder was accompanied by such additional acts as to set the crime apart from the normal murder; that is, a consciousless or pityless crime which is unnecessarily tortuous to the victim.”
Hopkinson’s murdering of Green by ordering him killed without evidence of the defendant’s participation in the actual torture makes the submission of the “especially heinous, atrocious or cruel” aggravating circumstance to the sentencing jury impermissible because the jury’s consideration of this highly emotional and inflammable aggravating factor is acceptable only in those circumstances where it has been proven beyond a reasonable doubt13 that the defendant participated in a special and unusual type of murder which can be described as a “conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Hopkinson v. State, supra; Proffitt v. Florida, supra.14 It is only this kind of evidence which, when the “especially heinous, atrocious or cruel” aggravating circumstance is given the sentencing authority, saves the statute from being “impermissible and vague” (Hopkinson v. State, supra). In the first Hopkinson case, 632 P.2d at 153-154, the majority said:
“ * * * [T]he statute requires the jury to find the murder to have been ‘especially heinous, atrocious or cruel.’ Webster’s Third New International Dictionary defines heinous as ‘hatefully or shockingly evil.’ Thus the term ‘especially heinous’ is more than just hatefully or shockingly evil. The murder, to be so classified, must demonstrate that the con-sciencelessness of the defendant is not only an outrage but also a dangerous and unrestrainable threat to society. Only when this is found can the murder properly be categorized as especially heinous. Since very few murders can be regarded in this manner, the term is NOT impermissible and vague.” (Emphasis added.)
The majority then adopted the definition of the terms “especially * * * atrocious or cruel” with the following recitation:
“As to the terms especially atrocious or cruel, we adopt the definition of these terms established in the jurisdiction from whence the state legislature borrowed them. See, Woodward v. Haney, Wyo. 1977, 564 P.2d 844. In this case the statute was derived from Florida’s. Its interpretation of these terms was discussed by Justices Stewart, Powell and Stevens in Proffitt as follows:
“ ‘ * * * In particular, the petitioner attacks the eighth * * * statutory aggravating circumstances, which authorize the death penalty to be imposed if the crime is “especially heinous, atrocious, or cruel,” * * * §§ 921.141(5)(h), * * * (Supp.1976-1977). These provisions must be considered as they have been construed by the Supreme Court of Florida.
*100“ ‘That court has recognized that while it is arguable “that all killings are atrocious, * * * [S]till, we believe that the Legislature intended something ‘especially’ heinous, atrocious or cruel when it authorized the death penalty for first degree murder.” Tedder v. State [Fla.], 322 So.2d [908], at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon [Fla.], 283 So.2d [1], at 9. See also Alford v. State [Fla.], 307 So.2d 433, 445 (1975); Halliwell v. State [Fla.], [323 So.2d 557] at 561.’ ” (Emphasis added.) 632 P.2d at 154.
Clearly, the majority in the first Hopkin-son appeal held that, in considering whether the heinous-atrocious-or-cruel aggravation should be given over to jury consideration, there must be evidence which addresses itself to the “consciencelessness of the defendant.”
The purpose of the “especially heinous, atrocious or cruel” aggravating circumstance is not to seek out the disproportion-ality of death as a penalty for murder, but is intended to focus upon the conduct of the defendant to see if his culpability will warrant the death sentence.15
The United States Supreme Court in Enmund v. Florida, supra, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152, said:
“ * * * The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund’s own conduct. The focus must be on his culpability, * * * for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence,’ Lockett v. Ohio, 438 U.S. 586, 605, 57 L.Ed.2d 973, 98 S.Ct. 2954 [2965], 9 Ohio Ops.3d 26 (1978) (footnote omitted) * * * 1)
In Godfrey v. Georgia, supra, 446 U.S. at 428, 100 S.Ct. at 1764—1765, the Court said:
“In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. Gregg v. Georgia, supra, reaffirmed this holding:
“ ‘[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’ 428 U.S. at 189, 96 S.Ct., at 2932 (opinion of STEWART, POWELL, and STEVENS, JJ.).
“A capital sentencing scheme must, in short, provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’ Id., at 188, 96 S.Ct., at 2932, quoting Furman v. Georgia, supra, 408 U.S., at 313, 92 S.Ct., at 2763 (WHITE, J., concurring).
*101“This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates ‘standardless [sentencing] discretion.’ Gregg v. Georgia, supra, at 196, n. 47, 96 S.Ct., at 2936, n. 47. See also Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929. It must channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ As was made clear in Gregg, a death penalty ‘system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.’ 428 U.S., at 195, n. 46, 96 S.Ct., at 2935.”
As I will undertake to demonstrate in this dissent, it is the failure to associate Hopkinson with the heinous-atrocious-and-cruel characteristics which attend upon the killing of Jeff Green that causes the giving of this statutory aggravating circumstance to have the effect of depriving the sentencing process of a meaningful basis for distinguishing this case from the many others where the death penalty is not prescribed. To say it another way, by underwriting the submission of the § 6 — 4—102(h)(vii) aggravating circumstance, absent supporting evidence that he participated in the torture, is for the courts to deprive the defendant of his right to have the sentencing jury focus upon his conduct rather than the conduct of unknown killers who may well have been the sole authors of Jeff Green’s torture.16 Thus, the statute as construed is unconstitutional as it was held to be in Godfrey v. Georgia, supra, where no acts of outrage or torture were associated with the murder. In this case, the association of the acts of torture with defendant Hopkinson is a vital and indispensable predicate to the giving of the “especially heinous, atrocious or cruel” aggravating circumstance, and it is the failure on the part of the State to make this connection — as condoned by the trial court and this court’s majority opinion — of which I complain and which, I say, constitutes reversible error. Assuming no associating evidence, reversible error is the necessary effect under our previous Hopkinson decision where it was said in the majority opinion:
“When it [the sentencing jury] made its findings of aggravating circumstances, it then was required to balance them against the mitigating circumstances and make a recommendation of sentence to the judge. Section 6-4-102(d)(i). Since its findings under the court’s instructions as to ‘previous convictions’ as instructed by the trial judge was not supported by the evidence, it was an erroneous finding and should not have been considered in the balancing process. We, therefore, are unable to conclude that in the absence of the finding of the improper aggravating circumstance the jury would have found the aggravating circumstances outweighed the mitigating circumstances and returned a sentence of death. When we do not know whether the result of the weighing process would have been different had the impermissible aggravating factor not been present and where a man’s life is at stake, we must return the case to the trial court for a new sentencing trial. Elledge v. State, Fla.1977, 346 So.2d 998, 1003. We agree with the reasoning of the Florida court that:
“ ‘ * * * This result is dictated because, in order to satisfy the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the sentencing authority’s discretion must be “guided and channeled by requiring *102examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913.’ * * * ” (Emphasis added.) 632 P.2d at 171-172.
This holding is supported by other state supreme courts where aggravating circumstances such as the one in question here have been considered.
In State v. Culberth, La., 390 So.2d 847, 851 (1980), in discussing the applicability of the aggravating circumstance of heinous, atrocious or cruel, the Supreme Court of Louisiana noted:
“Neither does the record support the finding that the offense was committed in an especially heinous, atrocious or cruel manner. Obviously, it was not intended that all murders fall in this category, even though it can be said that murder, itself, is a heinous, atrocious and cruel crime. We have stated that the concept of heinousness must necessarily include ‘some idea of torture or the pitiless infliction of unnecessary pain on the victim.’ State v. English, supra [367 So.2d 815], at 823 [La.1979]. Such a construction is necessary to protect the statute from attack on grounds of vagueness and overbreadth and to provide adequate guidelines for those involved in the sentencing process. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In this case the defendant did not torture or abuse the. victim before her death. The wounds were inflicted to kill, not to maim or to ’inflict pain.” (Emphasis added.)
In Justus v. State, 247 Ga. 276, 276 S.E.2d 242, 245, reh. denied 454 U.S. 1093, 102 S.Ct. 661, 70 L.Ed.2d 633 (1981), in discussing the aggravating circumstance that the offense of murder was outrageously or wantonly vile, horrible and inhuman in that it involved torture, depravity of mind and an aggravated battery, the Georgia Supreme Court made the following observations:
“ ‘Torture’ as the term is used in the statute occurs when the victim is subjected to serious physical abuse prior to death. [Citation.] Serious sexual abuse may be found to constitute serious physical abuse. [Citation.]
“Rosemary S. Jackson was not killed instantaneously nor was she the victim of a domestic murder. She gave the appellant no reason whatsoever to assault her and was in no manner threatening. The appellant fled and attempted in every manner to hide his crime. See Godfrey v. Georgia, supra. Miss Jackson was abducted and sexually assaulted prior to death. Therefore the murder was outrageously or wantonly vile, horrible or inhuman in that this murder is distinguishable from ordinary murders in which the death penalty is not appropriate. [Citation.] Under the facts of this case, we find that the murder was of the type universally condemned by civilized society as wantonly vile, horrible or inhuman, as it involved depravity of mind of the defendant and torture to the victim as set forth above.” (Emphasis added.)
Although the Georgia aggravating circumstance is not worded exactly like our corollary statutory provision, it is my opinion that the above quotation stands for the principle that in discussing the applicability of the Georgia aggravating circumstance, the court was concerned with the defendant’s participation in those aspects of the crime that made it a torturous or outrageously or wantonly vile, horrible or inhuman murder. In another opinion, the Georgia Supreme Court made the following observations:
“As mandated, we have reviewed the sentence in this case, and this court finds material difference between Godfrey and the case under review which distinguish this murder from the murder in Godfrey and from other ‘ordinary murders’ for which the death penalty is not appropriate.
“The evidence in this case shows that unlike Godfrey, the victim was not killed instantaneously; he was not a member of the appellant’s family, nor was he threatening the appellant in any manner. This *103was a cold blooded, planned execution type murder perpetrated for the purpose of robbing the victim, who was known to have a large amount of cash. With that purpose in view, the perpetrator severely beat and partially disrobed the victim seeking to find where he kept his money. As was pointed out in the original opinion, the victim was ‘cut all to pieces’ and gasoline was poured over him before he was shot. When the appellant returned from the killing, he had blood on his clothing, and there was blood in the yard where the victim had been beaten prior to being put in the back of a pickup truck and taken to the actual execution site. Thereafter, the victim’s truck with his body in it was burned in order to hide the crime.
“The evidence supports a finding beyond a reasonable doubt of serious physical abuse prior to death. [Citation.] As we held in our original opinion, the jury’s finding of Code Ann. § 27-2534.1(b)(7), torture occurs when the victim is subjected to serious physical abuse before death. [Citation.] A defendant who tortures a victim or subjects the victim to an aggravated battery before killing a victim can be found to have a depraved mind.” (Emphasis added.) Hardy v. State, 247 Ga. 235, 275 S.E.2d 319, 320-321, reh. denied 455 U.S. 929 [102 S.Ct. 1295, 71 L.Ed.2d 474] (1981).
A quote which I find applicable appears in State v. Lugan, 124 Ariz. 365, 604 P.2d 629, 636 (1979). There, in discussing the aggravating circumstance that the crime be especially heinous, cruel or depraved, the Arizona Supreme Court stated:
“For a killing to be especially cruel, the perpetrator must senselessly or sadistically inflict great pain on his victim. An example of exceptional cruelty can be found in State v. Knapp [114 Ariz. 531, 562 P.2d 704 (1977)], supra, where defendant set fire to the room in which his two infant daughters were asleep and caused them to be burnt to death. We find nothing in the record to establish that the victim suffered pain, and the commission of the offense in this case cannot, therefore, be considered especially cruel within the intent of A.R.S. § 13-454(E)(6).
“In determining whether a murder has been committed in an especially heinous or depraved manner, we must necessarily consider the killer’s state of mind at the time of the offense. This state of mind may be shown by his behavior at or near the time of the offense. Thus we have found those additional factors which make murder especially heinous or depraved where the killer not only shot to death the victim of a robbery but also shot two innocent bystanders, killing one, all for no discernable reason. [Citation.] In Knapp we characterized the killing of the bystander in [State v.] Blazak [114 Ariz. 199, 560 P.2d 54 (1977) ], as ‘particularly unnecessary and conscienceless.’
“We have also considered acts done immediately after the actual killing to determine the murderer’s mental state at the time of the killing. We have found an especially heinous or depraved manner of commission where the defendant murdered two victims in a ‘barrage of violence,’ continuing to shoot and abuse his victims even after he had killed them. [Citation.]”
The record in this case does not disclose any such required evidence of Hopkinson ⅛ participation in the torture of Green and thus the only criminal act for which Hop-kinson can be held responsible is murder. Absent such attendant “shockingly evil” acts as will successfully insulate the “especially heinous, atrocious or cruel” aggravating-circumstance submission against the charge of impermissible vagueness "as', contemplated by this court in Hopkinson v. State, supra, and the standardless-sentenc-ing concept of Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, where the United States Supreme Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner, the trial court erred in permitting the aggravating circumstance to go to the jury.
*104It cannot be rationally suggested that the jury stood unimpressed by the highly emotional and repulsive evidence of torture that was admitted into evidence in this case, nor can it be argued that it did not, out of impermissible fact assumption, vent its revulsion upon the defendant Hopkinson. The sentencing jury was invited, by Instruction No. 10, to infer that Hopkinson ordered the torture even though there was no evidence to support this fact. In Instruction No. 10 the court defined the meaning of the words “heinous,”17 “atrocious” 18 and “cruel”19 but failed to instruct that, before the jury could find that the conduct described by those definitions could be assigned to its consideration in contemplating the mitigating-aggravating circumstance process — where human life or death teeters so precipitously in the balance — such conduct must be found beyond a reasonable doubt to be in fact the conduct of the defendant. Absent this caveat, the jury was left, without instruction or standard, to speculate upon the question which asks whether or not — having found that Hopkin-son had ordered the murder — it even need worry about whether Hopkinson was responsible for Green’s torture. The jury might well have reached the conclusion that since it had found guilt in the murder phase of the bifurcated proceeding and since the submitted aggravating circumstance only wanted the jury to answer the question:
Was the murder especially heinous, atrocious or cruel?
it was not necessary for them to be able— with credible evidence — to associate Hop-kinson with the torture. This would be a logical conclusion because it is clear to all that the “MURDER” could and must be described as heinous, atrocious and cruel but whether or not Hopkinson ordered this form of killing is quite another thing.
To be sure, the jury demonstrably reacted to the instruction, the statements of counsel discussed infra and the exhibits which visually described the tortúre because the jury, out of its own recoil, volunteered a “Mitigating Circumstance” which read:
“The torture of Jeff Green may not have been ordered by Mark Hopkinson
Yes_ No_X_”20
An example of standardless sentencing procedure could hardly be more vividly fantasized than the situation which is presented by this appeal where the sentencing jury was permitted to hear about the shockingly evil and heinous torture of a human being in circumstances in which the evidence fails to connect the conduct of the defendant with the conscienceless and pitiless acts of torture which accompany the murder. The United States Supreme Court said in Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), that it
“ * * * is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”
*105Without associating the conduct of Hop-kinson with the torture of Jeff Green, the sentencing jury was permitted to hear the State’s attorney say in his opening statement:
“The murder was especially heinous, atrocious or cruel. The evidence in this case, and I’ll only say it once in the opening, and when I talk to you about the testimony of Dr. Stahl, will show you beyond any doubt this is one of the most heinous murders that ever occurred in the state of Wyoming. That is the guideline that will permit you to view the facts in this case.”
The State’s attorney also said to the jury in the opening statement:
“The evidence in this case on the heinous, atrocious and cruel nature of this murder is not very pretty. * * *
“What did they do to Jeff Green? Dr. Stahl, a forensic pathologist, Laramie, Wyoming, does a tremendous amount of work with the state crime lab on matters, a little bit out of the ordinary, a very qualified man. You will be impressed by him. He was called in to do the autopsy of Jeff Green and he will tell you, and it’s his opinion, that Jeff Green was tortured for the purpose of getting information out of him. He can do that because of his having been involved in other torture murders, and because of his qualifications, and also because of the tracks. He will explain to you that in murder, murderers leave tracks on bodies just like elk leave tracks in the snow. He will testify that in his opinion Jeff Green was tied to a chair or hung up or strung out in some way, evidenced by the fact there’s rope burns under both of his arms where actually the meat was torn in because of the pain and torture that man went through in order to get the information from him. He will testify that a knife was held to Jeff Green’s throat in three separate places, and they made little slit marks in his throat in an attempt to intimidate him into giving them information. They then held the knife or sharp object to his heart and made another slice across his heart.
“He will then testify that they held his hands out, and with a blunt instrument or even a foot or bat, they smashed his left hand. And then they took cigarettes and in one hand they burned 35 cigarette burns, in the other 37. And when that didn’t work, they got a hot iron, perhaps a welding iron or some other hot iron or even a knife heated up, and they started burning up his arms. Deep apparent burns. Not apparent but for sure burns. When that wasn’t enough they then started burning behind his ears, which he will explain is a very, very sensitive part of his body. Burnt the back end, the inside of his ears, and when that wasn’t successful, started burning along the hairline of Jeff Green. And when that wasn’t successful, they started then around his nose, and on his face and they burned T’s in his face for traitor. They burned up along his nose and across the top of his eyes and his eyelids. And finally in desperation, they burned the right eye out of the head of Jeff Green. Then they hit him with some type of blunt instrument here in the head and rendered him unconscious. For how long no one knows. They brought him to the interchange by Fort Bridger, walked him out into the sand and shot and killed him, so that would shut his mouth and so it would be a warning to all of the other people who were scheduled to testify in the grand jury proceeding investigating the Vehar murders that was supposed to start in two days.
“I respectfully submit on behalf of the State of Wyoming the evidence will prove not only one aggravating circumstance beyond a reasonable doubt, but all five. And if there’s ever been a case, ladies and gentlemen, that justifies the death penalty, this is it. Thank you.”
In his closing argument, the State’s attorney said:
“The last aggravating circumstance that the State contends is applicable in this case is that murder was especially heinous, atrocious, or cruel. Now, when I talk about that I’ll only talk about it once. But you all saw Dr. Stahl’s testi*106mony and there is no question. Dr. Stahl has said that it is by far the most heinous — he didn’t say by far — he said it was the most heinous, atrocious situation that he had ever been involved in.
“Ladies and gentlemen, the evidence in this case proves beyond any reasonable doubt the existence of each and every one of these aggravating circumstances. And, as the Court has instructed you, the burden of the State, which I recognize and I make no apologies for meeting, only requires us to prove one aggravating circumstance. The evidence in this case proves them all.”
Toward the conclusion of the argument, the State’s attorney said this about the “especially heinous, atrocious or cruel” aggravating circumstance:
“Then the last aggravating circumstance dealt with the heinous, atrocious, and cruel manner in which this murder occurred. I don’t like to even talk or think about what Jeff Green had to go through. Dr. Stahl is fast becoming one of the most noted pathologists in the area. He works with the State DCI. He is able to reconstruct how torture is administered. In this particular instance, you recall his testimony that there were three different— actually, four different modes of torture utilized. The knife. They held it to his throat, three splices on his throat, the two splices over his heart. The cigarette which is painful but relatively minor pain compared to what else he was subjected to. And his hands and arms. Then, when that wasn’t successful, a hot iron of some sort where they actually burned, burned his arms and then around' his face until they literally burned one of the eyes out of his head. And Dr. Stahl’s testimony is that that torture was administered for the purpose of obtaining information and for punishment. They don’t do that to Mark Hopkinson and get away with it. “What information did Mr. Hopkinson want? He asked Jennifer, who was Jeff talking to? What was said? Mr. Hopkin-son’s mode of dealing with that, if he finds out that the authorities have evidence against him he immediately purchases or manipulates testimony of his own. Perjured testimony on the other side to raise reasonable doubt, to come into a courtroom with a jury such as yourself who has the utmost faith and confidence in every human being and gives them equal credit, not recognizing that there are those among us who have no scruples whatsoever, who will go out and buy and hire and manipulate any type of testimony they deem necessary for their own benefit. But to do that, to do that, Mark Hopkinson had to know what Jeff Green had told the investigators. And so, he had to have him tortured to get that information.
“Then, you know, he could have had him killed, dumped his body in the desert. No problem. But he had to make a statement with the tortured body of Jeff Green. He knew that grand jury was going to convene on May 21st, 1979. If Jeff Green was missing, it really didn’t say enough for Mark Hopkinson. He had to make a statement to the people of that valley. He had to attempt to intimidate them further. He had to put them in fear. So, he had Jeff Green marched down behind the pullout just at the entrance of the Valley and had him shot in relatively open sight in an area that was frequented so that his body would be discovered, so it was a statement to all other potential witnesses. Don’t mess around with Mark Hopkinson.
“The problem is, the people of the Bridger Valley are decent, honorable people. The killing had to stop. They had enough. Even Mark Hopkinson’s friends had had enough. Even Mike Hickey had enough. They came before the grand jury. And the statement with Jeff Green’s body was too much for any of them to handle. And they came in and they told the truth. And Mark Hopkin-son was indicted and Mark Hopkinson was then brought to trial here in Jackson, Wyoming. And Mark Hopkinson was convicted beyond a reasonable doubt.
“Now, these facts, as I’ve gone over them with you- — Incidentally, the letter from *107the affidavit, which is just as good as any other sworn testimony, of V.A. Samples from Lompoc Penitentiary, proved that Mr. Hopkinson was there at the time of the murder of Jeff Green. * * *
******
“He had been convicted of the Vehar murders. He was shutting the mouth of Jeff Green. Jeff Green knew it. And murder for hire. And if there is any other murder that was any more heinous, atrocious or cruel, I don’t know of any. This case clearly justifies the death penalty.”
The Majority’s Handling of the Issue
Having observed that all aggravating circumstances must be proved beyond a reasonable doubt, and that
“ * * * the trial judge heeded the admonition of our opinion in the first appeal that any statutory aggravating circumstance unsupported by evidence should not be submitted for consideration by the jury, i.e., § 6 — 4—102(h)(iii), (iv), and (viii) fn. 7,” 664 P.2d at 57.
(a statement with which I cannot agree), the majority opinion in the ease at bar then goes on to capsulize the evidence which is considered sufficient to warrant the submission of the questioned aggravating circumstance as follows:
“The extensive evidence relating to the aggravating circumstance that the murder was especially atrocious, heinous and cruel, is of the most convincing nature. The evidence of threats against Green and others, the evidence of the character and disposition of appellant to take care of persons with violence, weapons and explosives, and his inquiry about the availability of welding equipment, laid a foundation for the capability of appellant to cause the horrible torture of Green which took place. The photographs of Green’s body are expressive even beyond the words of the testimony of the pathologist who detailed for the jury the various brutal wounds inflicted before Green’s being put to death.
“The testimony was that there were some 140 burns on the body of Green such as would be caused by cigarette burns and hot metal, thus connecting the welder which could be used as a heating tool. One of Green’s eyes was burned out, there was an ugly burn behind one of Green’s ears, explained by the pathologist to be an especially sensitive area. There were cuts on the throat and chest. There were bruises on his body consistent with having been caused by kicking with a boot or by striking with a baseball bat or hammer. There were abrasions on Green’s body probably caused by his being bound by ropes and resulting from an agonizing struggle during the torture. “This evidence explained this to have been consciousless or pitiless far beyond the normal murder, Hopkinson v. State, supra, which crime, of course by its nature, is possessed of some of the elements of being heinous, atrocious and cruel. But this one was ‘especially’ so within the meaning of the statutory language. Any rational juror could reach this conclusion beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution." (Emphasis added.) 664 P.2d at 59.
Further, the court makes this conclusory statement:
“Applying that standard,[21] then, to the three aggravating circumstances,[22] we *108find them more than supported by the evidence.” (Emphasis and bracketed material added.) 664 P.2d at 58.
Then, without citing to any facts of record, the court says:
“ * * * [H]e [defendant] arranged for hired triggermen to do the execution and intended that torture * * * be utiiized.” (Emphasis added.) 664 P.2d at 58.
The majority go on to observe:
“The evidence fully supported these aggravating factors.” 664 P.2d at 86,
(referring to, among others, the especially heinous, atrocious or cruel aggravating circumstances).
And, finally:
“All aggravating circumstances are measured as to the sufficiency of the evidence beyond a reasonable doubt according to the standard set by Jackson v. Virginia, supra, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt. We hold that, within this standard, there is no reasonable doubt that all five of the aggravating circumstances were proven.” 664 P.2d at 86.
Not only does the majority opinion not point to testimony or other facts of record that would support the giving of the “especially heinous, atrocious or cruel” instruction, but the appellee State of Wyoming is unable to find any supportive evidence either.
The State makes the following representation in its brief:
“The jury listed as a mitigating circumstance, in addition to those listed in the statute, ‘The torture of Jeff Green may not have been ordered by Mark Hopkin-son,’ but found that this circumstance was not present. * * * The evidence which supports this finding includes the following.
“While Appellant was incarcerated at Lompoc, California, he made several calls to the Bridger Valley. Generally, the subject of those calls was: the location of Jeff Green; to whom Jeff Green was speaking; that Green was speaking to the special prosecutors on the Vehar murder case; that the grand jury investigating the Vehar case was about to convene; that Green was going to be a witness. On one such call, Appellant spoke to Randy Reinholtz. Appellant wanted to know whether Green had any dynamite boxes and whether Reinholtz’ father had any welding equipment. * * *
“Shortly thereafter, Green’s body was found with burns which could have been caused by ‘some type of a hot iron, a coat hanger, a soldering iron, a heated knife, some such object as that.’ * * * Later, the burns were described as being consistent with ‘a blow torch used to heat [a] knife * * ** * * *
“Doctor Stahl testified extensively concerning his opinion as to how the torture was inflicted and the order of the torture. His conclusion was that torture of this sort is utilized ‘to punish and perhaps to extract information.’ * * *
“From these facts and the opinion of Dr. Stahl, there is substantial evidence in the record to support the conclusion that Appellant did order the torture of Green in order to discover what Green had told the special prosecutors, and what he would be able to tell the grand jury concerning Appellant’s role in the Vehar murders. “Therefore, Appellant’s suggestion that no evidence was presented regarding Appellant’s knowledge and intent is without merit.”
In my considered opinion, the prosecuting attorney, the State and this court are not able to point to any evidence which would support the conclusion that Hopkinson ordered the torture -death of Green.
The only evidence in the record which the State and the majority of this court can *109arguably point to as supporting the submission of § 6-4-102(h)(vii), is the testimony concerning the welding equipment. The State argues that the evidence that Jeff Green may have been burned by a welding rod and that Mark Hopkinson talked to Randy Reinholtz about welding equipment, is enough for the jury to infer circumstantially that Hopkinson ordered the torture. In my opinion, it is inconceivable to assert that such evidence was sufficient.
Exactly what was the evidence? On direct examination, Randy Reinholtz testified:
“Q. Did he ever ask you anything about welding equipment?
“A. Well, he asked me if my father had a welder and I told him yes and that was the end of the conversation.
“Q. Did he ask you where the welder was kept or anything of that nature?
“A. No, sir.
“Q. Did he ask you to get it for him or anything like that?
“A. No. I just told him yes and that was the end of it.
“Q. Why would he ask you for a welding set?
“A. I don’t know.”
Dr. Stahl, the medical expert, testified:
“Q. (By Mr. Moriarity) Doctor, those are a more severe degree of burn than the cigarette burns you depicted earlier; is that correct?
“A. Yes.
“Q. Do you have an opinion what they were inflicted with?
“A. A hot iron of some type. It could have been a heated coat hanger; it could have been a heated knife; it could have been a soldering iron. It's impossible to say exactly because there were so many burns that they're smudged together and the exact imprint is not left on the body.” (Emphasis added.)
On the basis of this testimony alone, the State submits that the jury could infer, beyond a reasonable doubt, that Mark Hop-kinson supplied the killers with welding equipment so that Jeff Green could be burned and tortured. A reading of the above testimony conclusively proves that such an inference is just not possible, and most of all not lawful. All Reinholtz said was that appellant asked him about a welder — the inferences that can be drawn from such an inquiry are many. The doctor only stated conclusively that Jeff Green was burned, but with what he did not know. From this, the jury could only properly infer that Jeff Green was burned by something other than a cigarette. In my opinion, the State asks the jury and this court to cross the canyon without a bridge. Absent some other proof, nothing substantial can be inferred from the evidence with respect to Mark Hopkinson’s participation in the torture of Jeff Green.
Summary and Conclusion
Assuming that the record reveals no lawful evidentiary connection between Hopkin-son and the acts of torture against Jeff Green and conceding, as we must, that the language “the murder was especially heinous, atrocious or cruel” contemplates that the evidence must show that it is the defendant who participated in such death-dealing activity as — in law — may be described as “especially heinous, atrocious or cruel” (Hopkinson v. State, supra), it follows that the jury was given an unauthorized, highly inflammable nonstatutory aggravating circumstance to ponder in the mitigating-aggravating life-or-death balancing process. This is impermissible by statute, § 6~4-102(h) (i.e., “Aggravating circumstances are limited to the following:”) and by law. Hopkinson v. State, supra; Elledge v. State, supra; Henry v. Wainright, 661 F.2d 56 (5th Cir.1981); Stephens v. Zant, supra. The trial court’s insertion of this nonstatutory aggravating circumstance into the balancing process where mitigating and aggravating circumstances were to be so delicately weighed by the sentencing jury in order that a decision could be reached about whether Hopkinson would live or die must indeed be considered prejudicial. I reach this conclusion because the majority opinion considers the aggra*110vating circumstance in question to have properly been submitted since the record contained sufficient evidence to support it. The majority say:
“The extensive evidence relating to the aggravating circumstance that the murder was especially atrocious, heinous and cruel, is of the most convincing nature.” 664 P.2d at 59.
The majority do not, however, point to evidence which associates the “heinous, atrocious or cruel” characterization of the murder with the defendant. This is not surprising because there are no facts of record which will permit such an evidentiary association between defendant Hopkinson and the torture aspects of Green’s murder. Circumstantial evidence that Hopkinson ordered the killing? — Yes. That he ordered Green tortured? — No.
We are not concerned here with whether the statute authorizing the “especially heinous, atrocious or cruel” aggravating circumstance is or is not facially constitutional. It is. Proffitt v. Florida, supra; Gregg v. Georgia, supra; Hopkinson v. State, supra.23 The issue in this appeal is whether or not the statute has been constitutionally applied. In Godfrey v. Georgia, supra, the United States Supreme Court held that a statute which embraced an aggravating circumstance describing the offense as “outrageously or wantonly vile, horrible or inhuman” was violative of the defendant’s rights under the Eighth and Fourteenth Amendments as construed, even though the same statute had previously been held to be facially constitutional and constitutional as construed in its previous Gregg v. Georgia opinion.
There is no doubt whatever that the torture-murder of Jeff Green may — and should, by all accounts — be described as “especially heinous, atrocious or cruel,” Godfrey v. Georgia, supra. Even so — the law. requires that, in order for this type of murder to warrant the submission of the § 6-4-102(h)(vii), supra n. 2, aggravating circumstance to the jury for death-penalty deciding purposes, the record must contain evidence which establishes beyond a reasonable doubt24 that the defendant was the author of or, in a material way, participated *111m the heinous, atrocious and cruel features of the killing.
Thus we have held — as have the United States Supreme Court and the State Supreme Court after whose legislation our statute was fashioned — that the “especially heinous, atrocious or cruel” aspects of the crime must in fact be shown to be the acts of the defendant and those acts must be such as may be categorized as a special, unusual and atrocious type of murder so that the statute will not therefore be considered “impermissible and vague,” Hopkin-son v. State, supra. It follows that not all acts of murder will fit the “especially heinous, atrocious or cruel” description. Concerning this same aggravating circumstance, the Supreme Court of Florida said in State v. Dixon, Fla., 283 So.2d 1, 9 (1973):
“ * * * What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.”
In other words, this aggravating circumstance insists that the jury consider what sort of a mentality it is that presided over the acts with which the aggravating circumstance in question is associated. Was this a person who sought out and killed his victim absent the introduction of attendant emotional or physical pain and suffering25 —or—is the defendant not only a killer but also a person who is depraved — who tortures without pity — who affirmatively and additionally displays a lack of base human morality — whose method of killing is a shock to the conscience of all who would hear of it? If the evidence indicates that the killer-defendant falls within the latter category — the “especially heinous, atrocious or cruel” aggravating circumstance may be injected into the sentencing process. If it falls into the former classification, it may not, because then the effect would be to apply the statute in a way which would be “impermissible and vague” and thus viola-tive of the defendant’s Eighth and Fourteenth Amendments rights as described by the Federal Constitution, as well as his corollary Wyoming constitutional rights. God-frey v. Georgia, supra.
THE RESUBMISSION OF CERTAIN AGGRAVATING CIRCUMSTANCES AMOUNTS TO DOUBLE JEOPARDY Appellant also claims that error occurred by reason of the resubmission of two statutory aggravating circumstances during the second sentencing trial which the jury in the first penalty trial had found to be inapplicable to the Green murder.
In the sentencing aspect of the first trial, the State submitted to the jury a total of eight aggravating circumstances which the prosecution urged were applicable to the death of Jeff Green. In returning the verdict of death, the jury found that four of these aggravating circumstances were applicable to the murder of Green.26 How*112ever, with respect to aggravating circumstances 5 and 6, which provided that the murder was committed for the purpose of avoiding or preventing a lawful arrest and the murder was committed for pecuniary gain, the first jury found that these aggravating circumstances were not applicable to the murder of Jeff Green.
After our reversal of the first death sentence and remand for a new penalty trial, the State chose to submit only five statutorily mandated aggravating circumstances. Included within those submitted were the aggravating circumstances that the murder of Jeff Green was committed for the purpose of avoiding or preventing a lawful arrest (§ 6 — 4-102(h)(v)), and that the murder was committed for pecuniary gain (§ 6-4-102(h)(vi)). On resubmission, the second sentencing jury found these two circumstances, as well as others,27 to be applicable to the death of Jeff Green even though the earlier jury had rejected them.
Hopkinson argues that the resubmission of these two statutory aggravating circumstances was error for the reason that the rejection of their applicability by the first sentencing jury constituted an acquittal of those circumstances and the State was forever precluded from proving them again by the proscriptions against double jeopardy contained in the United States and Wyoming Constitutions. I agree.
The proscriptions against double jeopardy are embodied in the Fifth Amendment to the United States Constitution and Art. 1, § 11 of the Wyoming Constitution, supra n. 6.28 The right guaranteed by these constitutional provisions guarantees that no individual shall be put in jeopardy more than once for the same offense. The question to be decided is whether the protections afforded by the concept of double jeopardy *113are applicable to the present circumstances. To rephrase the inquiry, the question is: Can each aggravating circumstance set out in § 6-4-102(h) be considered an offense for purposes of double jeopardy? I am of the opinion that proscriptions against double jeopardy apply to this case and the resubmission of the two aggravating circumstances provided for in § 6-4-102(h)(v) and (vi) violated appellant’s rights as guaranteed by the double-jeopardy clauses.
Basic Principles
Recently, in United States v. DiFrancesco, 449 U.S. 117, 127-128, 101 S.Ct. 426, 432, 66 L.Ed.2d 328 (1980), the Supreme Court of the United States set out the underlying concepts of the double-jeopardy clause:
“ — The general design of the Double Jeopardy Clause of the Fifth Amendment is that described in Green v. United States:
“ ‘The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ 355 U.S. [184], at 187-188 [78 S.Ct. 221, at 223, 2 L.Ed.2d 199].”
In DiFrancesco the Court reiterated what it said earlier regarding the protections afforded by the double-jeopardy clause in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce, the following observation was made:
“ * * * That guarantee has been said to consist of three separate constitutional protections. It protects a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Footnotes omitted.) 395 U.S. at 717, 89 S.Ct. at 2076.
Both Pearce and DiFrancesco concerned themselves with questions of the double-jeopardy implications surrounding the sentencing of criminal defendants.
In North Carolina v. Pearce, supra, the United States Supreme Court was faced with a challenge by a defendant to the imposition of a longer sentence upon recon-viction which came as a result of petitioner’s efforts to have his earlier conviction set aside. The question confronting the Court was whether or not the imposition of the greater sentence violated the double-jeopardy clause. In rejecting petitioner’s claim, then Justice Stewart noted several principles regarding the double-jeopardy clause and criminal-defendant sentencing:
“Long-established constitutional doctrine makes clear that, beyond the requirement already discussed, the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction. At least since 1896, when United States v. Ball, 163 U.S. 662, 41 L.Ed. 300, 16 S.Ct. 1192, was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. ‘The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.’ United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, 450. And at least since 1919, when Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defend*114ant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction. ‘That a defendant’s conviction is overturned on collateral rather than direct attack is irrelevant for these purposes, see Robinson v. United States, 6 Cir., 144 F.2d 392, 396, 397, aff’d on another ground, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944.’ United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct., at 1589, 12 L.Ed.2d 450, 451.
“Although the rationale for this ‘well-established part of our constitutional jurisprudence’ has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first conviction, that premise is, of course, an unmitigated fiction, as we have recognized in Part I of this opinion. But, so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. The conviction has been set aside, and the unexpired portion of the original sentence will never be served. A new trial may result in an acquittal. But if it does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question. To hold to the contrary would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Bail, supra, and upon the unbroken line of decisions that have followed that principle for almost 75 years. We think those decisions are entirely sound, and we decline to depart from the concept they reflect.” (Footnotes omitted.) 395 U.S. at 719-721, 89 S.Ct. at 2077-79.
Another challenge to sentencing founded on double-jeopardy principles was mounted in United States v. DiFrancesco, supra. In this case the government had invoked its right to appeal a sentence imposed by the district court under the dangerous special-offender provisions of the Organized Crime Control Act of 1970, 18 U.S.C. § 3576. 449 U.S. at 117, 101 S.Ct. at 426, 66 L.Ed.2d 328. The statute granted the government a right of appeal and vested the circuit court with the power to increase the sentence imposed by the district court. The Second Circuit Court of Appeals had found the statute unconstitutional, and the Supreme Court granted certiorari to determine whether or not the appeal provision violated the proscriptions against double jeopardy.
In holding that the government’s statutory right of appeal was not violative of double jeopardy, the Court extended the rationale underlying the previous decision in North Carolina v. Pearce, supra. Basically, the majority opinion, authored by Justice Blackmun, spoke to the proposition that historically and logically the imposition of a sentence has never been given the finality which is afforded to a judgment of acquittal evolving from the guilt phase of criminal proceedings. 449 U.S. at 132-136, 101 S.Ct. at 434-37. The telling thrust of the opinion is that the nature of the sentencing phase is different from the nature of the guilt phase and proscriptions against double jeopardy are generally not offended by further proceedings which seek to assess a proper sentence. The Court reasoned as follows:
“D. The double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence. We have noted above the basic design of the double jeopardy provision, that is, as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution’s statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence. Under § 8576, the *115appeal is to be taken promptly and is essentially on the record of the sentencing court. The defendant, of course, is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired. To be sure, the appeal may prolong the period of any anxiety that may exist, but it does so only for the finite period provided by the statute. The appeal is no more of an ordeal than any Government appeal under 18 U.S.C. § 3731 from the dismissal of an indictment or information. The defendant’s primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him. The defendant is subject to no risk of being harassed and then convicted, although innocent. Furthermore, a sentence is characteristically determined in large part on the basis of information, such as the presentence report, developed outside the courtroom. It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversary in nature.
“E. The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be. Congress has established many types of criminal sanctions under which the defendant is unaware of the precise extent of his punishment for significant periods of time, or even for life, yet these sanctions have not been considered to be violative of the Clause. Thus, there is no double jeopardy protection against revocation of probation and the imposition of imprisonment. See, e.g., Thomas v. United States, 327 F.2d 795 (CA10), cert. denied, 377 U.S. 1000 [84 S.Ct. 1936, 12 L.Ed.2d 1051] (1964). There are other situations where probation or parole may be revoked and sentence of imprisonment imposed. See, e.g., United States v. Kuck, 573 F.2d 25 (CA10 1978); United States v. Walden, 578 F.2d 966, 972 (CA3 1978), cert. denied, 444 U.S. 849 [100 S.Ct. 99, 62 L.Ed.2d 64] (1979); United States v. Jones, 540 F.2d 465 (CA10 1976), cert. denied, 429 U.S. 1101 [97 S.Ct. 1125, 51 L.Ed.2d 551] (1977); Dunn v. United States, 182 U.S.App.D.C. 261, 561 F.2d 259 (1977). While these criminal sanctions do not involve the increase of a final sentence, and while the defendant is aware at the original sentencing that a term of imprisonment later may be imposed, the situation before us is different in no critical respect. Respondent was similarly aware that a dangerous special offender sentence is subject to increase on appeal. His legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked.
“All this highlights the distinction between acquittals and sentences. North Carolina v. Pearce and Bozza v. United States [330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947)] demonstrate that the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase.” (Emphasis added.) 449 U.S. at 136-137, 101 S.Ct. at 437.
These cases announce basic principles which say that the protections afforded by the double-jeopardy clause are not applicable to the sentencing aspect of criminal proceedings. This rule ascends from the acknowledged concept which recognizes an historical and obvious difference between acquittals resulting from a trial in which the question of guilt or innocence is at issue, as compared to the issues which confront the court when the defendant has been convicted upon the charges that have been lodged against him.
Double Jeopardy in Capital Sentencing
After the decision in DiFrancesco, a glaring question remained which asked whether the rationale supporting DiFrancesco and other cases rejecting double-jeopardy sentencing claims were applicable to death-penalty sentencing hearings mandated by Furman, supra, Gregg, supra, and Proffitt, *116supra. The Supreme Court of the United States answered a portion of the question in 1981 with the decision in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).
In Bullington v. Missouri, supra, the Court was asked to answer whether or not the protections afforded by the double-jeopardy clause were violated where a defendant, previously sentenced to life imprisonment by a jury in a capital case, obtained a new trial in which the state attempted to seek the death penalty again. The Missouri Supreme Court determined that double-jeopardy principles did not preclude the imposition of the death penalty at retrial. The United States Supreme Court granted certiorari and held that the double-jeopardy clause barred the reimposition of the death penalty at petitioner’s new trial.
In analyzing the question, the majority of the Court revisited its historical position when it said:
“It is well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged. United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980); Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977); Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). This Court, however, has resisted attempts to extend that principle to sentencing. The imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed. The Court generally has concluded, therefore, that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See also United States v. DiFrancesco, 449 U.S. at 133-38, 101 S.Ct. at 435-438; Chaffin v. Stynchcombe, 412 U.S. 17, 23-24, 93 S.Ct. 1977, 1981-1982, 36 L.Ed.2d 714 (1973); Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919).” 101 S.Ct. at 1857.
After suggesting the previous reluctance of the Court to apply double-jeopardy concepts to the realm of sentencing, the majority opinion went on to characterize Bulling-ton’s case in a different manner.
“The procedure that resulted in the imposition of the sentence of life imprisonment upon petitioner Bullington at his first trial, however, differs significantly from those employed in any of the Court’s cases where the Double Jeopardy Clause has been held inapplicable to sentencing. The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain .facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes. “In contrast, the sentencing procedures considered in the Court’s previous cases did not have the hallmarks of the trial on guilt or innocence. * * * ” (Footnote omitted and emphasis added.) 101 S.Ct. at 1858.
The important point for us to note is that the death-penalty sentencing procedures mandated by the Missouri legislature were more akin to a guilt determination trial than they were to a normal sentencing hearing because the prosecution’s burden *117was to prove its ease beyond a reasonable doubt in order to warrant imposition of the death penalty. In the normal sentencing phase the prosecution’s only burden was to make a recommendation as to an appropriate sentence.
These procedural differences were enough for the Court to reject the “clean slate” approach urged by the State of Missouri. 101 S.Ct. at 1860-1861. Rather, the Court concluded that by requiring the state to provide proof of the applicability of statutory aggravating circumstances beyond a reasonable doubt, Missouri had chosen to require the death-penalty sentencing jury “to determine whether the prosecution has ‘proved its case.’ ” 101 S.Ct. at 1861. Given this, the Court characterized the first sentencing jury’s rejection of the death penalty in petitioner’s case as a finding that the prosecution failed to prove its case beyond a reasonable doubt, or, in other words, an “acquittal” of the death penalty. The following conclusions were set out:
“A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final. The values that underlie this principle, stated for the Court by Justice Black, are equally applicable when a jury has rejected the State’s claim that the defendant deserves to die:
“ ‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of- anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199 (1957).
“See also United States v. DiFrancesco, 449 U.S., at 137, 101 S.Ct., at 437. The ‘embarrassment, expense and ordeal’ and the ‘anxiety and insecurity’ faced by a defendant at the penalty phase of a Missouri capital murder trial surely are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial. The ‘unacceptably high risk that the [prosecution], with its superior resources, would wear down a defendant,’ id., at 129, 101 S.Ct., at 433, thereby leading to an erroneously imposed death sentence, would exist if the State were to have a further opportunity to convince a jury to impose the ultimate punishment. Missouri’s use of the reasonable doubt standard indicates that in a capital sentencing proceeding, it is the State, not the defendant, that should bear ‘almost the entire risk of error.’ Addington v. Texas, 441 U.S. [418], at 424, 99 S.Ct. [1804], at 1808 [60 L.Ed.2d 323]. Given these considerations, our decision today does not at all depend upon the State’s announced intention to rely only upon the same aggravating circumstances it sought to prove at petitioner’s first trial or upon its statement that it would introduce no new evidence in support of its contention that petitioner deserves the death penalty. Having received ‘one fair opportunity to offer whatever proof it could assemble,’ Burks v. United States, 437 U.S. [1], at 16, 98 S.Ct. [2141], at 2150 [57 L.Ed.2d 1], the State is not entitled to another.’’ (Emphasis added.) 101 S.Ct. at 1861-1862.
The decision in Bullington v. Missouri, supra, clearly stands for the proposition that, upon a finding by a jury that the death penalty should not be imposed in a capital case, the protections afforded by the double-jeopardy clause preclude the State on a retrial from further seeking to impose death as a sentence. In other words, once a jury has rejected, for whatever reason, the imposition of the death penalty, the defendant is deemed to have been “acquitted” and cannot be retried on the question of life or death.29
*118There is, however, a question not answered by the decision in Bullington that is of concern in the present case. That question, as I previously noted, asks whether or not the double-jeopardy clause precluded the State from resubmitting certain aggravating circumstances at the second sentencing trial where those self-same aggravating circumstances had been found not to have been proven by the first jury which had imposed the death penalty. I am of the opinion that, although left undecided by Bullington, the inescapable conclusion is that the reasoning of Bullington requires a finding that appellant’s rights against double jeopardy were violated by the resubmission of several aggravating circumstances.
Authority From Other Jurisdictions
Even though a myriad of death-penalty decisions have been handed down by the highest courts in other jurisdictions, following the Furman decision of 1972, very few have come to grips with the double-jeopardy issue posed by appellant in this case.’ The most thorough and detailed analysis of the question is that reported from the North Carolina Supreme Court in State v. Silhan, supra, 275 S.E.2d 450.
In State v. Silhan, the North Carolina Supreme Court sought to identify what can and what cannot be resubmitted to a second sentencing jury on remand when the first sentencing jury has returned a verdict imposing the death penalty. The opinion first points out that under North Carolina procedures, as is the case in Wyoming, a prerequisite to any jury decision imposing the death penalty is that the State prove the existence or applicability of the selected aggravating circumstances beyond a reasonable doubt. 275 S.E.2d at 482. The capital-sentencing procedure was also characterized in the same fashion used to describe the Missouri procedures in Bullington v. Missouri, supra — that the death-penalty sentencing trial is more like a guilt-determination phase than the normal sentencing hearing:
“ * * * That the jury must find three specific things and must find them beyond a reasonable doubt before it can impose the death penalty puts upon the jury in a capital case much the same kind of duty it has in determining a defendant’s guilt. The three requirements, in terms of the jury’s function, are like the elements of a given criminal offense all of which the jury must find to exist beyond a reasonable doubt before it can return a guilty verdict. This makes our capital sentencing process more like a determination of guilt than like an ordinary discretionary sentencing decision of a trial judge such as that dealt with in DiFrancesco. We look, therefore, more to the double jeopardy principles dealing with criminal convictions, many of which were alluded to in DiFrancesco, than to the holding of DiFrancesco itself. In other words we believe the Double Jeopardy Clause places some limitations on the state in a new capital sentencing hearing ordered because of legal error committed in the hearing from which a defendant successfully appeals.” 275 S.E.2d at 482.
After setting out this distinction — the same distinction that is so important to the decision in Bullington — the North Carolina Supreme Court concluded that the protections afforded under the double-jeopardy clause placed a number of limitations on the state’s power to retry the death penalty following the defendant’s successful appeal. The opinion says:
“Applying the Double Jeopardy Clause jurisprudence just discussed, we derive the following principles applicable to our capital sentencing procedure: The Double Jeopardy Clause is a limitation on the state’s, not the defendant’s, power to proceed. If a life sentence is imposed following conviction for a capital crime, the state may not appeal nor may a new sentencing hearing be ordered on defendant’s appeal of his conviction even if the life sentence was the result of trial error favorable to defendant. This would be tantamount to defendant’s having been acquitted of the death penalty. If upon defendant’s appeal of a death sentence the case is remanded for a new sentencing hearing, double jeopardy prohibitions *119would not preclude the state from relying on any aggravating circumstance of which it offered sufficient evidence at the hearing appealed from and which was either not then submitted to the jury or, if submitted, the jury then found it to exist. The dictates [of] a double jeopardy would preclude the state from relying on any aggravating circumstance of which it offered insufficient evidence at the hearing appealed from. This would be tantamount to the state’s having offered insufficient evidence of an essential element of a criminal offense in which case the state, because of double jeopardy considerations, could not retry the defendant even if it had sufficient evidence which could be offered at a new trial. Similarly the prohibition against double jeopardy would preclude the state from relying, at a new sentencing hearing, on any aggravating circumstance the existence of which the jury at the hearing appealed from, upon considering it, failed to find. The jury’s failure to find the existence of the aggravating circumstance, after it had considered it, would be tantamount to defendant’s having been acquitted of this circumstance.’’ (Emphasis added.) 275 S.E.2d at 482.
The restrictions mandated by the double-jeopardy clause according to the decision in State v. Silhan, supra, are:
1. Imposition of a life sentence after a death — penalty trial forever precludes the State from seeking death as an appropriate punishment30 (defendant is deemed “acquitted” of the death penalty);
2. On remand for a new sentencing hearing31 the State may rely on any aggravating circumstance not previously submitted to the jury for which there is sufficient evidence;
3. On remand, the State may rely on any aggravating circumstance submitted to the jury and determined to be applicable by the jury for which there is sufficient evidence;
4. On remand, the State may not rely on an aggravating circumstance determined to be not supported by sufficient evidence;
5. On remand, the State may not rely on any aggravating circumstance previously submitted to the jury, considered by it, and which the jury failed to find as being applicable.
I agree with each and every restriction set out in State v. Silhan, supra, because, as the court concluded, they are mandated by the dictates of double jeopardy.
Restriction No. 5 above is the one which is applicable to appellant’s case. That restriction says that it was error for the State to rely on the two aggravating circumstances mandated by § 6-4-102(h)(v) and (vi) at the second sentencing hearing because the State had submitted them to the first jury, which had found them inapplicable to the death of Jeff Green. This rejection by the first jury became an acquittal of those aggravating circumstances. This conclusion is inescapable because, under the Wyoming statutory scheme (§ 6 — 4—102), for a jury to impose the death penalty the State must prove beyond a reasonable doubt, and the jury need conclude, the existence of only one statutory aggravating circumstance. Thus, each of the aggravating circumstances listed in § 6-4-102(h) is in all respects similar to a crime or offense for which there is one element. Therefore, in appellant’s first case the State chose to charge and try appellant on eight of the offenses listed in § 6-4-102(h), but the jury found appellant guilty of only four of them32 —each one being sufficient to impose death *120as a sentence.33 Under the rules regarding double jeopardy in State v. Silhan, supra34 which I would adopt in all respects, reversal of appellant’s latest death sentence is required because the resubmission of two aggravating circumstances rejected by the prior jury violated the proscription against double jeopardy. This conclusion is mandated by both the Fifth Amendment to the United States Constitution and Art. 1, § 11 of the Wyoming Constitution. We said in Vigil v. State, Wyo., 563 P.2d 1344, 1350 (1977):
“ * * * While the respective double jeopardy provisions of the Wyoming State Constitution and the Fifth Amendment to the Federal Constitution are dissimilar in language, they have the same meaning and are coextensive in application.”
The Majority’s Erroneous Conclusion
Not meaning to overemphasize my viewpoint that the majority of this court have erroneously rejected appellant’s double-jeopardy claim, I must nonetheless comment on the reliance placed on Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.1982), which in my judgment bears little if any relevance to appellant’s position in the case at bar.
The majority opinion cites Knapp v. Cardwell, supra, for the proposition that “[tjhere is no such thing as an ‘acquittal’ from an aggravating circumstance in the penalty phase.” The majority fail to note that the rule expressed by the Ninth Circuit pertains to the fact that the contours of double jeopardy are not offended where the state introduces an aggravating circumstance at a retrial of the death-penalty question that was not submitted to the jury or the court at the first trial. The following is the language of the court:
“At the resentencing hearing of at least one of the appellants, evidence of aggravating circumstances was introduced that had not been introduced at the first sentencing hearing. State v. Valencia, 124 Ariz. 139, 602 P.2d 807 (1979) (evidence that appellant was convicted of another crime after the first hearing). In light of our finding that the Watson change in interpretation of section 13-454 is procedural and ameliorative, and in light of our finding that Bullington is distinguishable, we hold that this does not constitute double jeopardy. A resentencing hearing at which any evidence of both aggravating and mitigating circumstances is received does not violate appellants’ constitutional rights, even if the evidence de-véloped or was discovered after the original sentencing hearing or was not introduced there for some other reason.” (Emphasis added.) 667 F.2d at 1265.
Knapp does not, therefore, stand for the proposition that there “is no such thing as an ‘acquittal’ from an aggravating circumstance.” Instead, Knapp v. Cardwell says that when a first jury returns the death penalty, the state can retry that issue on remand and can introduce evidence of aggravating circumstances not previously relied upon, all in conformity with the strictures of the double-jeopardy clause. Nowhere in the Knapp opinion does the court deal with the issue posed by appellant in this case, and I might add that the holding of Knapp is fully consistent with restriction No. 2 above outlined from the decision in State v. Silhan, supra.
I am aware that there is authority for the proposition that an appellant’s rights against twice being put in jeopardy are not violated by the resubmission of aggravating circumstances in circumstances such as those exemplified by the case at bar.35 *121However, a reading of those opinions convinces me that the analysis utilized to support the conclusions is superficial, illogical and contrary to the rationale underlying the decision in Bullington v. Missouri, supra. I am convinced that the only treatment of the question which merits consideration is the opinion in State v. Silhan, supra. There the North Carolina Supreme Court carefully, logically and conclusively came to a proper resolution of the question.
Unlike the majority of this court, I find that reversible error was committed when the State was permitted to submit to the jury the two aforementioned aggravating circumstances which an earlier jury had rejected after careful consideration. To do so violated appellant’s right under the double-jeopardy clause of the United States and Wyoming Constitutions.
THE DEATH PENALTY IS UNCONSTITUTIONAL
My final reason for reversing appellant’s death sentence stems from what I said in my first opinion in this case. Hopkinson v. State, supra, 632 P.2d at 172. There I fully set out my view that the death penalty is unconstitutional and violative of Art. 1, § 14 and Art. 1. § 15 of the Wyoming Constitution. 632 P.2d at 199-215. I continue to hold those views, and will rely on what I have previously said with respect to the constitutional issue.
ORDER DENYING APPELLANT’S PRO SE MOTION FOR CONSIDERATION OF PLAIN ERROR
For the reasons stated in Part XI of the court’s opinion of this date, it is
ORDERED that appellant’s Motion of Proof, For Consideration In Showing Palin [sic] Error Existed, Which Was Not Properly Shown In Briefs Or Argument be, and is, denied.
. See our opinion in Hopkinson v. State, Wyo., 632 P.2d 79 (1981).
. Section 6-4-102, W.S.1977, provides in relevant part:
“Presentence hearing for murder in the first degree; mitigating and aggravating circumstances.
“(b) In all other cases [excepting only those in which the judge presides over the guilt phase of the proceeding] the sentencing hearing shall [after conviction] be conducted before the jury which determined the defendant’s guilt or, if the judge for good cause shown discharges that jury, with a new jury impaneled for that purpose.
“(c) The judge or jury shall hear evidence as to any matter that the court deems relevant to a determination of the sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (h) and (j) of this section. Any evidence which the court deems to have probative value may be received regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements, and provided further that only such evidence in aggravation as the state has made known to the defendant or his counsel prior to his trial shall be admissible. “(d) Upon conclusion of the evidence and arguments the judge shall give the jury appropriate instructions, including instructions as to any aggravating or mitigating circumstances, as defined in subsections (h) and (j) of this section, or proceed as provided by paragraph (ii) of this subsection:
“(i) After hearing all the evidence, the jury shall deliberate and render a recommendation of sentence to the judge, based upon the following:
“(A) Whether one (1) or more sufficient aggravating circumstances exist as set forth in subsection (h) of this section;
“(B) Whether sufficient mitigating circumstances exist as set forth in subsection (j) of this section which outweigh the aggravating circumstances found to exist; and
“(C) Based upon these considerations, whether the defendant should be sentenced to death or life imprisonment.
* * sf: ⅜! ⅜; *
“(e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. The jury, if its verdict is a recommendation of death, shall designate in writing signed by the foremen of the jury the aggravating circumstances or circumstances which it found beyond a reasonable doubt. * * * If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence.
“(f) Unless the jury trying the case recommends the death sentence in its verdict, the judge shall not sentence the defendant to *92death but shall sentence the defendant to life imprisonment as provided by law. Where a recommendation of death is made, the court shall sentence the defendant to death.
“(g) If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.
“(h) Aggravating circumstances are limited to the following:
“(i) The murder was committed by a person under sentence of imprisonment;
“(ii) The defendant was previously convicted of another murder in the first degree or a felony involving the use or threat of violence to the person;
“(iii) The defendant knowingly created a great risk of death to two (2) or more persons;
“(iv) The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, sexual assault, arson, burglary, kidnapping or aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb;
“(v) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
“(vi) The murder was committed for pecuniary gain;
“(vii) The murder was especially heinous, atrocious or cruel;
“(viii) The murder of a judicial officer, former judicial officer, district attorney, former district attorney or former county and prosecuting attorney, during or because of the exercise of his official duty. [1982 Cum. Supp.]
“(j) Mitigating circumstances shall be the following:
“(i) The defendant has no significant history of prior criminal activity;
“(ii) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
“(iii) The victim was a participant in the defendant’s conduct or consented to the act;
“(iv) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor;
“(v) The defendant acted under extreme duress or under the substantial domination of another person;
“(vi) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired;
“(vii) The age of the defendant at the time of the crime.”
. See my dissent in Hopkinson v. State, supra n. 1, 632 P.2d at 173-216.
.In Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), Chief Justice Burger, writing for the plurality, said:
“[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer * * * not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character of record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
. See State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), discussed infra.
. The Fifth Amendment to the United States Constitution provides in pertinent part:
*94“ * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * *
This amendment is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 397 U.S. 784, 787, 794, 89 S.Ct. 2056, 2058, 23 L.Ed.2d 707 (1969).
Article 1, § 11 of the Wyoming Constitution provides:
“No person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense. If a jury disagree, or if the judgment be arrested after a verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.”
.Even though “[a] person of ordinary sensibilities” could fairly characterize almost every murder as “outrageously or wantonly vile, horrible or inhuman,” not all murders may be held to fall in this category without violating the standardless sentencing which was criticized in Furman. Godfrey v. Georgia, supra.
. While under Wyoming statute (§ 6-4— 102(d)(0) the jury is charged with recommending a sentence to the judge (e.g., “render a recommendation to the judge”), the “recommendation” of death is binding upon the judge under § 6-4-102(f), where it is provided:
“Where a recommendation of death is made, the court shall sentence the defendant to death.”
. In my dissent in Hopkinson v. State, supra, 632 P.2d at 176, I said:
“ * * * I would agree with the appellant that the ‘especially heinous, atrocious or cruel’ *95aggravating circumstances should not have been given to the jury because when applied to the evidence — i.e., as construed — it is vague and overbroad. I would remand for this additional reason with the hope that before this aggravating circumstance is submitted to any future sentencing authority, the matter would first be given careful consideration.”
. See § 6-4-102(h), W.S.1977, supra n. 2.
. The Florida Supreme Court has indicated that it would not follow this rule of reversal where one but not all aggravating circumstances found below were invalid and where no *97mitigating circumstances were found. Elledge v. State, supra, 346 So.2d at 1002-1003 (dictum). The theory here appears to be that the Florida statutory scheme requires, rather than merely permitting, the death sentence wherever any aggravating circumstances are found, unless at least one mitigating circumstance is found. Id.; see also Douglas v. State, Fla., 373 So.2d 895, 896 (1979). This aspect of Florida law is presently irrelevant (and therefore its dubious consistency with the constitutional prohibition against mandatory death penalties [see e.g., Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); [Harry] Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Lockett v. Ohio, supra] need not be explored here), because the law of no other jurisdiction in the country makes a death sentence mandatory upon a finding of aggravating circumstances and no mitigating circumstances.
. “The defendant knowingly created a great risk of death to two or more persons.”
. Section 6-4-102(e) provides:
“The jury, if its verdict is a recommendation of death, shall designate in writing * * * the aggravating circumstance or circumstances which it found beyond a reasonable doubt.” (Emphasis added.)
. In Proffitt v. Florida, supra, the Supreme Court relied upon the decisions of the Supreme Court of Florida which had addressed the meaning of the words contained in the identical aggravating circumstance in State v. Dixon, Fla., 283 So.2d 1, 9, cert. denied 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1973), where it was said that the statutory provision is directed only at
“ * * * the conscienceless or pitiless crime which is unnecessarily torturous to the victim.”
See also Alford v. State, Fla., 307 So.2d 433, 445 reh. denied 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1975); Halliwell v. State, Fla., 323 So.2d 557, 561 (1975).
. “ * * * ‘[T]he fundamental respect for humanity underlying the Eighth Amendment . .. 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.’ Id., at 304. See Roberts (Harry) v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).” Mr. Justice Powell, writing for the Court in Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and quoting from the plurality opinion in Woodson v. North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2991.
Justice O’Connor, concurring in Eddings, supra, wrote:
“Because sentences of death are ‘qualitatively different’ from prison sentences, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell and Stevens, JJ.), this Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.” 455 U.S. at 117-118, 102 S.Ct. at 3379.
. Just here it should be recalled that the person or persons who inflicted the torture and the murder upon the person of Jeff Green are to this day unknown.
. “[M]eans extremely wicked or shockingly evil.”
. “[M]eans outrageously wicked and vile.”
. “[M]eans designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.”
. For purposes of discussing this particular proposition, I am placing the State’s interpretation upon this jury expression but there are quite a few things that cast doubt upon this translation. In the first place, the jury wrote this statement under the heading of “Mitigating Circumstances.” This might be glossed over more easily were it not for the fact that the language of the statement — read literally — and taking the double negative into account— means:
The torture of Jeff Green was not ordered by Mark Hopkinson.
In other words — does the statement say:
No to the proposition that the murder of Jeff Green was not ordered by Mark Hopkinson,
or does it say
We — the jury — react negatively to a statement which says the murder of Jeff Green was not ordered by Mark Hopkinson?
This might not be quite so troublesome were it not the obligation of the jury to find a given aggravating circumstance to be present beyond a reasonable doubt. Section 6-4-I02(e), supra n. 2. I presume that a natural concommitant of that proposition is that the courts ought to be able to tell from the verdict, beyond a reasonable doubt, what it is the jury decided.
. The standard referred to is to be found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh. denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), where the court says:
“ * * * [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, ANY rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Emphasis added.) See Johnson v. Louisiana, 406 U.S., at 362, 92 S.Ct., at 1624-1625.”
. The aggravating circumstances to which the majority here refer are those the defendant contends are not supported by the evidence; they are:
1. Murder was committed for the purpose of avoiding or preventing a lawful arrest.
*1082. The murder was committed for pecuniary gain.
3. The murder was especially heinous, atrocious or cruel.
. In Hopkinson, supra, the majority said:
“ * * * xhe statute [§ 6-4-102] does not fail to properly channel the jury’s sentencing decision and does not grant it unfettered discretion to impose the death penalty for arbitrary and capricious reasons.” 632 P.2d at 153. While it may be the rule in Wyoming that
§ 6-4-102(h)(vii) is facially constitutional, it is not the rule in California. See People v. Superior Court of Santa Clara County, 31 Cal.3d 797, 183 Cal.Rptr. 800, 647 P.2d 76, 78 (1982), where the court said:
“None of these terms meets the standards of precision and certainty required of statutes which render persons eligible for punishment, either as elements of a charged crime or as a charged special circumstance.
⅜5 ⅜ ⅝5 *
“It seems unlikely, for several reasons, that judicial construction could narrow the scope of the special circumstance on the basis suggested by the People. For one thing, as a discourse between the trial court and the prosecutor made clear, any attempt to determine what constitutes ‘necessary’ torture — to clarify the meaning of ‘unnecessary’ — appears to be futile. Furthermore, even assuming that hurdle were overcome, to find the special circumstance to be proved, the jury must agree that the crime was ‘conscienceless or pitiless’ — terms that only add to the vagueness problem. As ‘unnecessarily’ torturous assumes the existence of conduct that is necessarily torturous, so a conscienceless or pitiless first degree murder assumes the existence of such murder performed with conscience or pity. We cannot fathom what it could be.
“The conclusion is inescapable that the language of subdivision (a)(14) is so vague that men of common intelligence must guess at its meaning, and trial judges and jurors will look in vain for a standard for ascertainment of guilt or, in this case, for determination of the truth of the special circumstance.”
. Section 6-4-102(e), supra n. 2. See also: State v. Dixon, supra n. 14, 283 So.2d at 9, where the Florida Supreme Court, in commenting upon its statute — after which Wyoming’s § 6-4-102(e) was fashioned — said:
“The aggravating circumstances of Fla.Stat. § 921.141(6), F.S.A., actually define those crimes — when read in conjunction with Fla. Stat. §§ 782.04(1) and 794.01(1), F.S.A. — to which the death penalty is applicable in the absence of mitigating circumstances. As such, they must be proved beyond a reasonable doubt before being considered by judge or jury.”
. As in Godfrey v. Georgia, supra, where the United States Supreme Court held the giving of a similar aggravating circumstance renders the statute vague and overbroad and thus violative of the defendant’s rights under the Eighth and Fourteenth Amendments to the United States Constitution.
. In Hopkinson v. State, supra, 632 P.2d at 167-168, the jury at the first penalty triál found:
“ ‘We, the jury, duly empaneled and sworn to try the above cause do find the existence of the following aggravating circumstances at the time of the murders: [Emphasis added.] (Check as many spaces and [in] Items 1 through 8 as you find, or check Item 9 only.)
“ ‘1. ( ) The murder was committed by a person under sentence of imprisonment.
“ ‘( ) Applicable to the death of Vincent Ve-har.
“ ‘( ) Applicable to the death of Beverly Ve-har.
“ ‘( ) Applicable to the death of John Vehar.
“ ‘(x) Applicable to the death of Jeff Green.
“ ‘2. ( ) The Defendant was previously convicted of another murder in the first degree or a felony involving the use or threat of violence to the person.
“ ‘( ) Applicable to the death of Vincent Ve-har.
“ ‘( ) Applicable to the death of Beverly Ve-har.
“ *( ) Applicable to the death of John Vehar.
“ ‘(x) Applicable to the death of Jeff Green.
*112“ ‘3. ( ) The Defendant knowingly created a great risk of death to two or more persons.
“ ‘(x) Applicable to the death of Vincent Ve-har.
“ ‘00 Applicable to the death of Beverly Ve-har.
“ ‘00 Applicable to the death of John Vehar.
“ ‘( ) Applicable to the death of Jeff Green.
“ ‘4. ( ) The murder was committed while the Defendant was engaged or was an accomplice in the commission of or an attempt to commit or flight after committing or attempt to commit any robbery, rape, sexual assault, arson, burglary, kidnapping or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.
“ ‘(x) Applicable to the death of Vincent Ve-har.
“ ‘(x) Applicable to the death of Beverly Ve-har.
“ ‘(x) Applicable to the death of John Vehar.
“ ‘(x) Applicable to the death of Jeff Green.
“ ‘5. ( ) The murder was committed for the purpose of avoiding or preventing a lawful arrest of [or] effecting an escape from custody.
“ ‘( ) Applicable to the death of Vincent Ve-har.
“ ‘( ) Applicable to the death of Beverly Ve-har.
“ '( ) Applicable to the death of John Vehar.
“ ‘( ) Applicable to the death of Jeff Green.
“ ‘6. ( ) The murder was committed for pecuniary gain.
“ ‘( ) Applicable to the death of Vincent Ve-har.
“ ‘( ) Applicable to the death of Beverly Ve-har.
“ '( ) Applicable to the death of John Vehar.
“ ‘( ) Applicable to the death of Jeff Green.
“ ‘7. ( ) The murder was especially heinous, atrocious or cruel.
“ ‘(x) Applicable to the death of Vincent Ve-har.
“ ‘(x) Applicable to the death of Beverly Ve-har.
“ ‘(x) Applicable to the death of John Vehar.
“ ‘(x) Applicable to the death of Jeff Green.
“ ‘8. ( ) The murder of a judicial officer, former judicial officer, county attorney, or former county attorney during or because of the exercise of his official duty.
“ ‘( ) Applicable to the death of Vincent Ve-har.
“ ‘( ) Applicable to the death of Beverly Ve-har.
“ ‘( ) Applicable to the death of John Vehar.
“ ‘( ) Applicable to the death of Jeff Green.
“ ‘9. ( ) No aggravating circumstances.”
. The second sentencing jury also concluded that the murder was committed by a person under sentence of imprisonment (§ 6-4-102(h)(i)); the defendant was previously convicted of another murder in the first degree (§ 6-4-102(h)(ii)); the murder was especially heinous, atrocious or cruel (§ 6-4-102(h)(vii)).
. As previously noted, the double-jeopardy clause of the Fifth Amendment was made applicable to the states through the Fourteenth Amendment. See: Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
. Of course, the decision in Bullington was grounded on the statutory procedures required by the Missouri legislature; however, such an observation is not crucial to the decision since those procedures closely model Wyoming’s and those of other jurisdictions.
. This restriction, of course, is exactly what the United States Supreme Court concluded a short time later in Bullington v. Missouri, supra.
. This would arise out of an appellate court decision that trial or legal error had occurred requiring the setting aside of the jury’s death-sentence decision, rather than reversal on grounds of insufficient evidence to support imposition of the penalty itself.
.On retrial the State chose not to rely on two other aggravating circumstances found inapplicable by the initial jury.
. My conclusions here are not in conflict with and do not in any way temper my earlier discussion of the lack of sufficient evidence to support the “especially heinous, atrocious or cruel” aggravating circumstance.
. I note that the views expressed in State v. Silhan, supra, have received some recognition by the United States Supreme Court. See: Jones v. Florida, (denial of petition for writ of certiorari) (dissenting opinion of Justice Marshall) -U.S. -, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982).
.See for example: Godfrey v. Georgia, 248 Ga. 616, 284 S.E.2d 422 (1981); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981).