dissenting in part.
The majority concludes that the statutory scheme for death penalty cases forbids a new trial only on the penalty issue because Code § 19.2-264.3(C) provides that the “same jury” which determines guilt shall also fix the punishment. I do not believe that this statute should be so narrowly construed.
In Snider v. Cox, 212 Va. 13, 181 S.E.2d 617 (1971), the defendant had been convicted of rape and sentenced to death. The death sentence was set aside because the jury selection, on the issue of punishment alone, was not in accordance with Witherspoon v. Illinois, 391 U.S. 510 (1968). This court remanded the case for a new trial on punishment alone.*
I believe that Code § 19.2-264.3(C) upholds this traditional procedure. Properly construed, the phrase “same jury” possesses a temporal, not a substantive meaning. The General Assembly intended that the group of jurors try both the guilt and penalty phases only when the penalty phase immediately followed the guilt phase.
The majority opinion finds error in the penalty phase of the jury selection process and atones for this error by commuting the sentence from death to life. Again, I do not believe that the General Assembly intended this result.
*666The controlling statute, Code § 17-110.1, provides in part:
Review of death sentence.. A. A sentence of death, upon the judgment thereon becoming final in the circuit court, shall be reviewed on the record by the Supreme Court.
D. In addition to the review and correction of errors in the trial of the case, with respect to review of the sentence of death, the court may:
1. Affirm the sentence of death; or
2. Commute the sentence of death to imprisonment for life. [Emphasis added.]
The statute does not say that trial errors may be corrected by commutation of sentence, and I do not believe that was contemplated. The majority has yielded to the “tyranny of labels” and thus seriously impairs the death penalty statute. Otherwise I concur in the opinion of the majority.
At that time Code § 19.2-264.3(0) was not in existence nor was there any provision for bifurcated trials in rape or homicide cases.