dissenting.
The egalitarian concepts embedded in our fundamental law on jury selection require a result different from that reached by the majority opinion.
In this case, a juror stated, "Yes,” to the question of whether she was conscientiously opposed to capital punishment. This was all she was asked about her views on capital punishirfent. She was not asked if she were unalterably opposed to capital punishment or could not vote for it under any circumstances.
In this setting of limited voir dire examination, the trial court excused the juror for cause. Defense counsel specifically objected and told the court, "this juror should be allowed to remain ...” The majority opinion concludes this was not error.
The effect of the trial court’s ruling which excused *813this juror for cause over objection by the defendant was to give the state an extra peremptory strike because the juror was not shown to be disqualified for legal cause. I believe this violates the constitutional proscription, announced in Witherspoon v. Illinois, 391 U. S. 510, that a juror shall not be excused for cause merely on the basis that he has expressed conscientious scruples against the infliction of capital punishment.
In Simmons v. State, 226 Ga. 110 (172 SE2d 680) (1970), this court said on p. 114 of a unanimous opinion: "The court erred in excusing two jurors from serving in this case solely on the basis that they stated on a voir dire question that they were conscientiously opposed to capital punishment. Another indispensable question, required by Witherspoon v. Illinois, 391 U. S. 510, supra, was not ásked. The failure to ask such an additional question, the answer to which would truly reveal the jurors’ qualification to serve, was error.”
In a case decided in 1975 by this court, Simmons v. State, supra, was cited with approval by Justice Hill, speaking for the court: "The standards of jury selection applicable in death cases are set forth in Witherspoon v. Illinois, 391 U. S. 510 (88 SC 1770, 20 LE2d 776), as amplified in Boulden v. Holman, 394 U. S. 478 (89 SC 1138, 22 LE2d 433), and Maxwell v. Bishop, 398 U. S. 262 (90 SC 1578, 26 LE2d 221). Witherspoon held that 'a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.’ Witherspoon, supra, pp. 521-523. Such a venireman cannot be excluded unless he makes it unmistakably clear that he would vote against the death penalty regardless of what transpires at trial, or that his attitude on the death penalty would prevent him from impartially passing on the issue of guilt, or that he could not subordinate his personal feelings on the death penalty to his oath as a juror to obey the law of the state as charged by the trial court. See Simmons v. State, 226 Ga. 110 (12) (172 SE2d 680); Miller v. State, 224 Ga. 627 (8) (163 SE2d 730).” (Emphasis supplied.) Owens v. State, 233 Ga. 869, 871 (214 SE2d *814173) (1975).
In my judgment, Simmons and Owens control the present case. The error could not be harmless because nobody knows (nay, not even the majority of this court) whether the state would have exercised one of its statutory strikes to excuse this juror if she had not been excused for cause by the trial judge. If she had not been excused but rather had served on the trial jury, who can say, without boasting of clairvoyance, that she would not have influenced her fellow jurors to impose a sentence other than the death sentence for the defendant?
The error is too plain and the uncertain consequences of it too obvious for me to vote to affirm this sentence of death. The majority strain to approve it when a new trial on the punishment could be ordered to do justice to all.
I am authorized to state that Chief Justice Nichols joins in this dissent.