concurring specially.
In Redd’s first sentencing trial, three aggravating circumstances were submitted to the jury: (1) The offense of murder was committed while the defendant was engaged in the commission of the capital felony of kidnapping with bodily injury (Code Ann. § 27-2534.1 (b) (2)); (2) the offense of murder was outrageously or wantonly vile or inhuman in that it involved torture, or depravity of mind, or an aggravated battery (Code Ann. § 27-2534.1 (b) (7)); and (3) the offense of murder was committed while the offender was engaged in the commission of the capital felony of armed robbery (Code Ann. § 27-2534.1 (b) (2)). See Redd v. State, 242 Ga. 876, 883 (252 SE2d 383) (1979), cert. denied, 442 U. S. 934. The jury returned a recommendation of death based only on the aggravating circumstance that the murder was committed while Redd was engaged in the capital felony of kidnapping with bodily injury. We reversed this death sentence because the jury was not adequately instructed concerning their option to recommend life imprisonment even if they found the presence of a statutory aggravating circumstance. Redd v. State, 240 Ga. 753 (7) (243 SE2d 16) (1978). See also Hawes v. State, 240 Ga. 327 (240 SE2d 883) (1977); Fleming v. State, 240 Ga. 142 (240 SE2d 37) (1977).
In the resentencing trial, the jury was permitted to consider four aggravating circumstances, the same three charged in the original trial plus Code Ann. § 27-2534.1 (b) (4) (the offense of murder was committed for the purpose of receiving money). Redd v. State, supra, 242 Ga. at 883 n. 2. The jury again found in favor of the death penalty, this time based on both the aggravating circumstance of kidnapping with bodily injury ((b) (2)) and the aggravating circumstance that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery ((b) (7)).
I agree that because this is a case where the defendant’s first death sentence was reversed due to trial error, the resentencing jury was free to again recommend the death penalty. Cf., North Carolina v. Pearce, 395 U. S. 711, 719-20 (89 SC 2072, 23 LE2d 656) (1969). Compare Godfrey v. State, 248 Ga. 616, 625-26 (284 SE2d 422) (1981) (Hill, P. J., dissenting). For the following reason, I also agree that the habeas court erred in setting aside the death sentence imposed by the resentencing jury in this case.
The first sentencing jury returned the aggravating circumstance of kidnapping with bodily injury and this finding was not reversed due to insufficient evidence. It did not violate double jeopardy to resubmit this aggravating circumstance to the second jury or for them to impose the death penalty based upon it. Under our cases, when two *216or more aggravating circumstances are returned by the jury in recommending a death sentence, the failure of one aggravating circumstance does not invalidate the other aggravating circumstance or the death sentence. Stevens v. State, 247 Ga. 698, 708-09 (278 SE2d 398) (1981); Burger v. State, 245 Ga. 458, 462 (265 SE2d 296) (1980), cert. denied, 446 U. S. 988. Because the habeas court therefore erred in setting aside Redd’s death sentence, regardless of whether it was error to submit aggravating circumstance (b) (7) to the resentencing jury, I would not reach the issue discussed at length in the majority opinion.