dissenting.
At the guilt-innocence phase of his last trial, Spraggins’ plea was not guilty by reason of insanity. OCGA § 17-7-131 (b) (1) requires the trial court under these circumstances to instruct the jury with respect to the four possible verdicts it may return, and as to the consequences if the verdict is not guilty by reason of insanity, or guilty but mentally ill.
*35Decided February 18, 1988 Reconsideration denied March 2, 1988. Michael Kennedy McIntyre, for appellant. William G. Hamrick, Jr., District Attorney, Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Assistant Attorney General, for appellee.OCGA § 17-7-131 (b) (3) specifies the manner of instruction, as follows: “(A) I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, this court will maintain custody and control of the defendant until the court is satisfied that the defendant is not a danger to himself or to others. (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given over to the Department of Corrections or the Department of Human Resources, as the mental condition of the defendant may warrant.” The trial judge failed to read the second subparagraph of the statutory instruction, and for that the majority reverses.
I dissent because I see no way in which that omission, although failing to comply with the requirements of the Code, was in any way harmful to Spraggins.
(1) There is no real question that Spraggins committed the murder of France Coe.1
(2) The jury had all information that could be gathered touching on Spraggins’ mental and emotional condition, and with the exception of the charge on the consequence of a verdict of guilty but mentally ill, the jury was instructed on all aspects of OCGA § 17-7-131.2
(3) The error occurred during the guilt-innocence phase of the trial, not the punishment phase. As such, it could not have influenced the death penalty.
I am authorized to state that Justice Hunt joins in this dissent.
Spraggins v. State, 240 Ga. 759 (243 SE2d 20) (1978) (conviction and life sentence affirmed, death penalty reversed, new trial ordered on sentence only); Spraggins v. State, 243 Ga. 73 (252 SE2d 620) (1979) (second death penalty verdict affirmed); Francis v. Spraggins, 720 F2d 1190 (11th Cir. 1983) (habeas corpus relief granted on the ground of ineffective assistance, new trial ordered).
The charge included the consequence of a verdict of not guilty by reason of insanity. The statutory charge as to guilty but mentally ill simply does not apply in a death penalty case. If a defendant is sentenced to be executed, he most assuredly is not “given over to the Department of Corrections or the Department of Human Resources as the mental condition of the defendant may warrant.”