dissenting with respect to the reversal of the capital sentence, with whom BROWN, Chief Justice, Retired, joins.
Despite the sincere attempt of the American Bar Association over the years to establish as the slogan or motto of the legal community that we enjoy “[a] government of laws, and not of men * * (Marburg v. Madison, 1 Cranch 137, 163, 5 U.S. 137, 2 L.Ed. 60 (1803)), and without regard to the support of the bench and the bar for that concept, the precise converse must be accepted as true in Wyoming the instant this decision is filed. I have searched, in vain, for something different in this case with respect to the validity of the capital sentence imposed in Engberg v. State, 686 P.2d 541 (Wyo.1984), cert. denied 469 U.S. 1077, 105 S.Ct. 577, 83 L.Ed.2d 516 (1984). Nothing has changed about the case. The only discernible difference is that there are two new members on this court who apparently would espouse the views of the dissent in the first Engberg case and one *167member of the court who earlier had voted with the majority but has now had a change of heart.
Why then do I claim that Wyoming enjoys a government of men, not laws? First, because the majority opinion on the issue of capital punishment reaches out to capture a question that is not part of the Engberg case for the purpose of overruling the most recent affirmance of the sentence to death by this court in the Mark Hopkin-son case. Hopkinson v. State, 798 P.2d 1186 (Wyo.1990). Second, because the disposition of the sentence to death in the majority opinion on that issue is made in complete disregard of the doctrine of res judicata. Third, I cannot overlook the fact that one of the justices, who has assiduously recused himself from every case or matter involving Hopkinson since joining the court (I understand because of some contact with one of the parties while the justice still was in private practice), now joins a majority opinion that has no effect in this case but effectively overrules the prior decision of this court in Hopkinson, 798 P.2d 1186. After eschewing the front entrance to the Hopkinson case, it now seems that the justice is willing, even if unwittingly, to enter through the Engberg portal.
There are those who advocate the repeal of capital punishment statutes. If the judicial department is so philosophically opposed to capital punishment that it will find a reason in every case to set the death sentence aside, there may be merit in the repeal of the capital punishment statute. When that occurs, however, there is some justification for the suggestion that we indeed have an imperial judiciary that insists upon imposing its philosophy as to that question without regard for the majority will apparently articulated by a valid legislative adoption of capital punishment. As a member of the minority of the court on this question, I cannot change that result, but I can call attention to the event and its implications and, on behalf of the citizens, protest the resolution.
It is necessary to quote at length from the majority opinion on the issue of the death sentence to avoid taking the matter out of context. The majority opinion first quotes from an amendment to the Wyoming capital murder statute that was adopted some seven years after Engberg killed Vernon Rogers and some four years after his sentence to death became final after full appellate review. Then the majority says:
“The change reflects the United States Supreme Court’s decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), a decision made while this petition was still pending before this court. In Mills, the Court held that the trial court in a death sentence case must clearly instruct the jury that each individual juror may consider any mitigating circumstance he or she finds to exist in making a sentencing determination regardless of whether the jury unanimously found that mitigating circumstance to exist. 486 U.S. at 377-80, 108 S.Ct. at 1867-68. Reversal is required unless a ‘substantial possibility’ that this occurred can be ruled out.
“The sentencing phase instructions in this case required that the jury find an aggravating circumstance beyond a reasonable doubt and mitigating circumstance by a preponderance of evidence. The instruction for weighing the factors against each other did not indicate whether the mitigating factors must be found unanimously. Another instruction told the jury that it must unanimously agree on a verdict of death, and if it is unable to do so, the court will impose a sentence of life. The verdict form gave the jury two choices. The jury could either find the mitigating circumstances outweighed the aggravating circumstances and sentence Engberg to life, or that the mitigating circumstances did not outweigh the aggravating circumstances and sentence him to death. Nowhere in the instructions or verdict form was the jury told that the mitigating circumstances need not be found unanimously by the jury but that the mitigating circumstances may be found by individual jurors and weighed by them individually in deciding the life or death question.
*168“Because W.S. 6-2-102 (1991 Cum. Supp.) will govern retrial of the sentencing phase of this case, we need not decide whether to extend the Mills decision to Engberg in a retroactive manner. See Sawyer v. Smith, — U.S. —, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Flores v. State, 572 P.2d 746 (Wyo.1977). Nevertheless, it is important to remember that our law has always been ‘that matters which convict require unanimity, and failure to convict can result from the vote of one juror and that aggravating and mitigating circumstances should be dealt with in the same way.’ Hopkinson v. State, 798 P.2d 1186, 1190 (Wyo.1990) (Cardine, J., dissenting). The right to a unanimous verdict is beyond dispute. Taylor v. State, 612 P.2d 851, 853 (Wyo.1980); see Wyo.Const. Art. I, § 9. It is essential that Engberg be accorded the proper instructions on finding and considering mitigating circumstances in a retrial of the penalty phase of his felony murder conviction.” Majority opinion on the issues affecting imposition of the capital sentence, at 11 (emphasis added).
I must respectfully remind the majority that the Wyoming law is not settled by what is articulated in a dissenting opinion in Hopkinson, 798 P.2d 1186, or any other case or matter. On that issue, the majority opinion in Hopkinson, 798 P.2d at 1187, states:
“6. The Petitioner’s earnest arguments that error occurred in the second penalty trial because of the instructions to the jury relating to mitigating circumstances in the light of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), fail of persuasion because the record in this case would not have justified reversal based upon the legal principle articulated in those cases, the cases are distinguishable and, under the circumstances, the court is not required to, nor would it be appropriate, to apply those cases retrospectively. The issue of the instructions relating to mitigating circumstances has been before this court, Hopkinson v. State, 664 P.2d 43 (Wyo.1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983), and the United States District Court, Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986), reh. denied 648 F.Supp. 141 (D.Wyo.1986), and the instructions were approved.”
While one must grudgingly admire the assiduity and tenacity of the majority in the effort to eliminate capital punishment in Wyoming, attempting to do that by articulating dictum in a case in which, by the majority’s own admission, “we need not decide” the issue and relying upon a dissenting opinion, the quotation from which is itself taken out of context, for the authority to justify the dictum falls short of my perception of intellectual honesty.
The only possible purpose for this aspect of the majority opinion is to furnish support to the federal court, in which the Hop-kinson case is pending on a petition for post conviction relief, to set aside the sentence to death in the Hopkinson case. That effort would have the effect of eliminating the death sentence in the only two remaining cases in Wyoming in which it was imposed by the jury. Already, there is evidence of the fact that prosecutors are not seeking the death penalty in cases in which a sentence to death well might be appropriate because they do not believe that the judiciary will permit the execution. I rest my case on this aspect of the evidence that Wyoming now enjoys a government of men, not laws.
I turn to my second concern about the resolution of this case. One of the most revered doctrines in our jurisprudence is that of res judicata. Those matters that have been adjudicated between the same parties are accorded finality. Nothing could be more clear than the fact that these identical issues were before this court in the prior case and decided contrary to this decision. Were this not the same case, but a different one, the doctrine of stare deci-*169sis would suggest the same result. As Justice Cardine said:
“Perhaps only a Cassandra will be heard to mourn the neglected rule of stare decisis, but it is a sad day indeed when our declarations within the same case are subject to judicial revision. If we are unwilling to take seriously what we write, how can we expect others to take us seriously?” Jones v. State, 798 P.2d 1206, 1208 (Wyo.1990), Cardine, J., dissenting.
With respect to the death sentence in this case, we have done .the very thing that was so vigorously protested in Jones.
Furthermore, the majority has reached that result in a way that is particularly troublesome. Instead of applying settled law in the same case under either doctrine, res judicata or stare decisis, the majority has selected a rule adopted by judges in other places who have no commitment to serving the people of the State of Wyoming and has preferred that rule over the one previously adopted by Wyoming justices on this Court. This is done despite the fact that the decision of the Court was scrutinized by the United States Supreme Court for error under the Constitution of the United States and then not subjected to federal review. What we have then is an adaptation of a rule under another state constitution, adopted by judges in the different state, that has been imported to be substituted for solid Wyoming law. Is there any question that I must protest this result by dissenting from the majority opinion on the validity of the death sentence?
Perhaps the real justification for the majority position is best captured in the following:
“Few of us have directly faced the awesome task of deciding whether a fellow human being should, three days hence, be killed by execution. I face that immediate decision, alone for the first time, as another of life’s sobering experiences by which we find out more about who we are and how we feel about life and death, our relationships with others, power, justice, and the law. The legislative branch has decided as a matter of policy that the penalty for first degree murder in the State of Wyoming should be death. Statutes have been enacted specifying death by lethal injection as punishment. I am convinced now that this is an unwise policy.
* * * * * *
“ * * * To arrive at a rational decision, our focus ought to be on the death penally itself. Every person who ever walked or will ever walk on the face of this earth is unique. There will never be another like that person. Life is precious. It is a gift that is so unique and wonderful that no mortal man should cheapen it by taking it from another. It has been said that killing begets killing. The more we kill, the more conditioned we become to killing until we are so conditioned that no one cares anymore. Someday every court in our land will recognize punishment by killing as cruel and unusual, but today we are not prepared to accept what someday will come to pass.” Hopkinson, 798 P.2d at 1188 and 1192, Cardine, J., dissenting (emphasis added).
These are noble words. Would they had been uttered to memorialize a torture victim, a family literally blown apart, or an innocent victim of an armed robbery rather than in support of convicted, cold-blooded killers. The court should not lose the fact that when he killed Vernon Rogers, Eng-berg was an escapee from the Missouri Department of Corrections minimum security facility, where he was serving a life sentence for murder in the first degree after the killing of a night watchman in connection with an armed robbery. I submit that noble words do not justify the result here and, instead of seizing upon justification from other jurisdictions, the rule of res judicata should control, and the capital sentence should be affirmed. I regret that the drafter of the majority opinion on the sentencing phase feels that there has been unfair and personal criticism in this dissenting opinion. I do, indeed, endeavor to be attentive to the feelings of my brothers on the court. On the other hand, there are situations in which candor is es*170sential. I perceive this as one of those situations.
There is no justification for the drafter of the majority opinion to accept criticism as personal. A majority opinion is the product of a collegiate court and, when circulated for consideration by the other members of the court, or, at least, when filed, it no longer retains any proprietary aspect so far as the drafter is concerned. It becomes an institutional product that is owned only by the court. The opinion is the product of an institution that has no personality, but instead is a corporate identity. Certainly, this institutional identity encompasses one of the difficulties in serving on an appellate and collegiate court. The effort to articulate a committee decision in a way that is acceptable to all members of the committee is difficult and stressful.
Turning then to the reference to omitted material from the dissent in Hopkinson the full text of that material reads:
“Few of us have directly faced the awesome task of deciding whether a fellow human being should, three days hence, be killed by execution. I face that immediate decision, alone for the first time, as another of life’s sobering experiences by which we find out more about who we are and how we feel about life and death, our relationships with others, power, justice, and the law. The legislative branch has decided as a matter of policy that the penalty for first degree murder in the State of Wyoming should be death. Statutes have been enacted specifying death by lethal injection as punishment. I am convinced now that this is an unwise policy. I am convinced also that, at this time in our history, these statutes are constitutional and, therefore, the law. I have taken an oath to support, obey and defend the constitution and will honor that oath. So, on to the law.” Hopkinson, 798 P.2d at 1188.
I was aware of the full text when this dissenting opinion was prepared initially. I also am aware that, in becoming attuned to what we colloquially call the “bottom line,” the citizens in our society, indeed, pay attention to what we do as well as what we say.
Mature reflection demands acceptance of the proposition that, in many instances, actions speak more voluminously and more eloquently than any words that can be used to describe them. Consequently, I opted to omit the complete quotation from Hopkin-son because the next to the last sentence seems to me to have a hollow ring in light of the impact of this decision upon the death penalty in Wyoming. Lip service to the constitutionality of the death penalty has no meaning so long as this court will reach and stretch to find technical justification for avoiding its implementation. In my view, that reaching and stretching is present here and, to the extent that the court now redecides the Hopkinson case, it is present there.
I add to what has been said the proposition that it is clear that at least one member of the court’s majority now has read the dissenting opinion. There can be no question that the revisiting of Hopkinson to decide it in a different way is indeed intentional and not accidental. I would like to offer a solution to the abrogation of the capital sentencing statute in Wyoming but, as the saying goes, “When you have the votes, vote!” The majority have the votes; they have voted; and capital punishment is abolished in the State of Wyoming. That result is not required by the law, but instead it is reached as a choice of policy, a policy that is contrary to the one chosen by the legislature.
An affirmance of the capital sentence can clearly be justified by proper reasoning and authority. In most situations, Eng-berg’s sixteenth issue, the impropriety of invoking as aggravating circumstances the commission of the murder by Engberg for pecuniary gain and while engaged in the commission of the robbery, after relying on the robbery to invoke the first degree murder statute, would be controlled by the doctrine of res judicata and the concept of waiver. Engberg’s argument that his sentence was determined in a manner which violates the Eighth and Fourteenth Amendments to the Constitution of the United *171States is a combination of an argument rejected by this court on his direct appeal, together with an issue which he did not raise, but which was addressed by a dissenting justice in Engberg, 686 P.2d 541. Engberg was encouraged to raise that issue in his petition for rehearing, and the court’s order denying the petition stated:
“This case came on before the court upon the Petition for Rehearing filed herein by the appellant, Roy Lee Engberg, and the court, having carefully considered the Petition for Rehearing and being fully advised, finds that the petition does not encompass any question or matter necessary to correct a decision which has been overlooked by the court; seeks to present a point for the first time in the case; does not demonstrate a reasonable probability that the court arrived at an erroneous conclusion; and that the Petition for Rehearing should be denied; and it therefore is * * Engberg, 686 P.2d at 563 (emphasis added).
I am persuaded that cause exists to avoid procedural waiver because of recent cases dealing with this issue. State ex rel. Hopkinson v. District Court, Teton County, 696 P.2d 54 (Wyo.1985), cert. denied 474 U.S. 865, 106 S.Ct. 187, 88 L.Ed.2d 155 (1985). See also Perry v. Lockhart, 656 F.Supp. 46, 48 (E.D.Ark.1986) (“the ‘novelty’ of the pecuniary gain argument at the time of Perry’s trial was sufficient to provide ‘cause’ for his failure to raise this question”); Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984).
Subsequent to the decision of the court in Engberg, a division developed in the federal courts on the question of whether an element of the underlying felony could be used as an aggravating circumstance without infringing upon the Eighth Amendment to the Constitution of the United States. See Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Wilson v. Butler, 813 F.2d 664 (5th Cir.1987), cert. denied 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1021, reh’g denied 485 U.S. 1015, 108 S.Ct. 1491, 99 L.Ed.2d 719 (1988), following Welcome v. Blackburn, 793 F.2d 672 (5th Cir.1986), cert. denied 481 U.S. 1042, 107 S.Ct. 1985, 95 L.Ed.2d 825, reh’g denied 483 U.S. 1012, 107 S.Ct. 3245, 97 L.Ed.2d 750 (1987). In addition, several decisions in the highest courts of the states, most notably the recent decision by the Supreme Court of North Carolina in State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), appeal after remand 325 N.C. 125, 381 S.E.2d 681 (1989), cert. granted and judgment vacated — U.S. —, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990), on remand 327 N.C. 480, 397 S.E.2d 233 (1990), on remand 328 N.C. 288, 401 S.E.2d 632 (1991), have held that it is improper to submit statutorily overlapping aggravating circumstances to a jury in the sentencing phase of a capital case. We relied upon the rationale of the Supreme Court of North Carolina found in State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981), in deciding Engberg, 686 P.2d 541, specifically rejecting the view of the Supreme Court of Florida. Since the Supreme Court of North Carolina now has ruled in a definitive way contrary to the holding which we adopted previously, I would address the merits of Engberg’s sixteenth issue only to determine whether our prior conclusion should be changed or modified.
A constitutionally satisfactory procedure for imposing the death penalty requires assurance that the jury has made a specific determination that capital punishment is appropriate on the basis of the character of the individual defendant and the circumstances of that particular crime. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, reh’g denied 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 820 (1987); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127, reh’g denied 482 U.S. 921, 107 S.Ct. 3201, 96 L.Ed.2d 688 (1987); Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). The legislature’s selection of aggravating circumstances has been accepted by the United States Supreme Court as properly limiting the jury’s discretion if they circumscribe the class of persons upon whom capital punishment may be imposed. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reh’g denied 429 U.S. 875, 97 S.Ct. 197, 50 *172L.Ed.2d 158 (1976). See Hopkinson, 632 P.2d 79.
“ * * * [A] jury’s discretion to impose the death sentence must be ‘suitably directed and limited so as to minimize the risk of wholly, arbitrary and capricious action.’ Gregg v, Georgia, 428 U.S. 153, 189 [96 S.Ct. 2909, 2932, 49 L.Ed.2d 859] (1976) (joint opinion of Stewart, Powell and Stevens, JJ.); * * Booth, 482 U.S. at 502, 107 S.Ct. at 2532.
The provisions of the Constitution of the United States do not prohibit a state from imposing capital punishment on an individual defendant on the basis of a single aggravating circumstance, so long as the circumstance is not unconstitutionally vague.1 Even though an aggravating circumstance may meet the constitutional standard under this test, if the circumstance is so construed that it is vague as applied, the imposition of capital punishment will be set aside.
“Thus the validity of the petitioner’s death sentences turns on whether, in light of the facts and circumstances of the murders that he was convicted of committing, the Georgia Supreme Court can be said to have applied a constitutional construction of the phrase ‘outrageously or wantonly vile, horrible or inhuman in that [they] involved * * * depravity of mind * * *.’ We conclude that the answer must be no. The petitioner’s crimes cannot be said to have reflected a consciousness materially more ‘depraved’ than that of any person guilty of murder. His victims were killed instantaneously. They were members of his family who were causing him extreme emotional trauma. Shortly after the killings, he acknowledged his responsibility and the heinous nature of his crimes. These factors certainly did not remove the criminality from the petitioner’s acts. But, as was said in Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 [(1977)], 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.’
“That cannot be said here. There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.” Godfrey v. Georgia, 446 U.S. 420, 432-33, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), cert. denied 456 U.S. 919, 102 S.Ct. 1778, 72 L.Ed.2d 180, reh’g denied 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1298 (1982) (footnotes omitted).
The requisite narrowing also may be accomplished by defining the elements of the crime. The Supreme Court of the United States said in Jurek v. Texas, 428 U.S. 262, 270-71, 96 S.Ct. 2950, 2955-56, 49 L.Ed.2d 929 (1976), reh’g denied 429 U.S. 875, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976):
“While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. See McGautha v. California, 402 U.S. 183, 206 n. 16, 91 S.Ct. 1454, 1466 n. 16, 28 L.Ed.2d 711 (1971); Model Penal Code § 201.6, Comment 3, pp. 71-72 (Tent. Draft No. 9, 1959). In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory *173aggravating circumstances. For example, the Texas statute requires the jury at the guilt determining stage to consider whether the crime was committed in the course of a particular felony, whether it was committed for hire, or whether the defendant was an inmate of a penal institution at the time of its commission. Cf. Gregg v. Georgia, 428 U.S. at 165-166, n. 9, 96 S.Ct. at 2921 n. 9; Proffitt v. Florida, 428 U.S. [242] at 248-249, n. 6, 96 S.Ct. [2960] at 2965, n. 6 [49 L.Ed.2d 913 (1976)]. Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option — even potentially — for a smaller class of murders in Texas. Otherwise, the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime.”
In achieving this narrowing, however, the state may not remove the jury’s discretion as to whether capital punishment should be imposed by a mandatory infliction of capital punishment even in narrowly circumscribed situations. Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987).2
My further reflection upon the rulings of the Supreme Court of the United States persuades me that an element of the underlying felony may be considered as an aggravating circumstance in a capital case. I conclude that the United States Court of Appeals for the Fifth Circuit adequately captured the justification for our position in Welcome, 793 F.2d 672, relied upon in Wilson, 813 F.2d 664, in which it said:
“Louisiana’s inclusion as an element of the crime of first degree murder of the aggravating circumstance of committing multiple murders in a single consecutive course of conduct serves to cull out of the class of all murders, a small group which the State makes eligible for the death penalty. But finding that circumstance present in the course of determining guilt does not fix punishment. It only serves to permissibly advance the sentencing jury to the stage of weighing mitigating as well as aggravating circumstances in order to make an individualized determination of life or death based on the character of the individual and the circumstances of the crime. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983). The finding of this aggravating circumstance as a part of the guilt determination process does not finally control the imposition of the death penalty. Such a finding only permits the death penalty to be considered.” Welcome, 793 F.2d at 677.
The utilization of an aggravating circumstance, although it duplicates an element of the felony upon which the conviction of first degree murder was premised, does not fail to “genuinely narrow the class of persons eligible for the death penalty.” Zant, 462 U.S. at 877, 103 S.Ct. at 2742. This was the criticism levied by the United States Court of Appeals for the Eighth Circuit in Collins, 754 F.2d 258, and I conclude that the stance there taken is fallacious.
Statutory aggravating circumstances are invoked to circumscribe those instances in which capital punishment may be imposed after the defendant has been found guilty of a capital offense. If the jury finds, beyond a reasonable doubt, that one of the legislatively defined aggravating circumstances has been established, it may impose capital punishment on the basis of all the evidence without transgressing the Constitution of the United States. Zant; Barclay v. Florida, 463 U.S. 939, 103 S.Ct. *1743418, 77 L.Ed.2d 1134, reh’g denied 464 U.S. 874, 104 S.Ct. 209, 78 L.Ed.2d 185 (1983).
“Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant, 462 U.S. at 878-79, 103 S.Ct. at 2743-44 (citations and footnotes omitted; emphasis added).
Since a single aggravating circumstance can be used to narrowly define the offense and be construed as constitutional, or, alternatively, the same circumstance may be characterized as an aggravating circumstance to be considered by the jury in connection with all evidence bearing on the “character of the individual and the circumstances of the crime,” I cannot be persuaded that an element of the underlying felony cannot be considered as an aggravating circumstance in the sentencing stage. In the form of statute that Wyoming has adopted, the definition of the crime serves a narrowing function with respect to those instances in which capital punishment may be imposed. Even though the same information is invoked as an aggravating circumstance following conviction, at that stage of the trial, it simply serves to further narrow the instances in which capital punishment may be and should be imposed. There is no justification for a contention that this sequential consideration simply results in arbitrary imposition.
In determining whether capital punishment should be imposed, the Eighth Amendment to the Constitution of the United States demands that the evidence against the defendant focus on his character and the circumstances of the crime. Booth, 482 U.S. 496, 107 S.Ct. 2529; Zant; Barclay. There is nothing in these interpretations of the constitution that justifies a rule that relevant evidence should be excluded from the jury’s consideration in the sentencing phase simply because that evidence also established the defendant’s guilt of the crime. Rather than assuring arbitrary action, the utilization of this evidence serves to avoid the possibility of capricious action.
The constitution does not require a state to limit the evidence presented against a defendant in the sentencing portion of a capital case, but it may choose to do so. Zant. In Wyoming, the legislature made a choice. It limited the evidence which may be presented and considered against a defendant to that which is relevant to one of the statutorily defined aggravating circumstances, even though it permitted any relevant mitigating evidence whether or not it is probative of one of the statutorily defined mitigating circumstances. Section 6-2-102(d), W.S.1977 (June 1983 Repl.); Hopkinson, 632 P.2d 79. In performing this function, the jury is doing exactly that which the Supreme Court has indicated must be done. It is the classic sentencing function of imposing “[a]n individualized determination on the basis of the character of the individual and the circumstances of the crime.” Zant, 462 U.S. at 879, 103 S.Ct. at 2744.3
Engberg’s argument, based upon the rule in the Fifth Circuit, would be more persuasive if the duty of the jury at the sentencing stage was simply to count the number of aggravating circumstances against the number of any mitigating circumstances. We explained in Engberg, 686 P.2d 541, however, that the sentencing stage analysis in Wyoming is qualitative not quantitative, and we approved the in*175struction of the trial court which explained to the jury how that process should be accomplished. In considering the evidence as to the underlying felony at the guilt stage, the jury is concerned only with whether certain facts have been proved beyond a reasonable doubt. When that same information is presented at the sentencing stage, however, the legislature has given the jury additional discretion that it may use to deny capital punishment. At this point in the trial, the jury must focus not upon whether facts have been proved, but upon the qualitative evaluation of those facts in the light of other aggravating and mitigating circumstances. The inevitable result is to narrow further the instances in which capital punishment will be the sentence.
Finally, the position of the Fifth Circuit simply fails to acknowledge the significance of mandatory appellate review. We explained in Hopkinson:
“A sentence of death is subject to automatic review by this court. We must consider, not only the errors enumerated by way of appeal, but also whether the sentence was the product of an arbitrary factor, the evidence supports the findings of the trier of fact, and the sentence is excessive or disproportionate when compared with similar cases. In addition to affirming or reversing the underlying conviction, we may affirm the sentence of death, set aside the sentence and impose a sentence of life imprisonment, or remand for resentencing by the trial judge.” Hopkinson, 632 P.2d at 153.
It is our duty to determine that a capital sentence was not imposed in an arbitrary and discriminatory manner. The United States Supreme Court has recognized meaningful appellate review as a strong factor in determining whether a capital punishment statute adopted by a state is constitutional. E.g. Barclay, 463 U.S. 939, 103 S.Ct. 3418; Godfrey, 446 U.S. 420, 100 S.Ct. 1759; Zant.
I also would conclude to abide by our decision in Engberg, 686 P.2d 541, with respect to the claim that it was error to allow the jury to consider both aggravating circumstances: (1) that the murder was committed during the course of a robbery and (2) that it was committed for pecuniary gain. Again, I recognize that the Supreme Court of North Carolina has changed positions from Oliver, 274 S.E.2d 183, to Quesinberry, 354 S.E.2d 446. Again, the utilization of both aggravating circumstances would be more troublesome if the Engberg jury was performing a quantitative analysis. Because the jury in this state must invoke a qualitative rather than a quantitative analysis of the aggravating factors, the significance of any overlap of the factors is diminished substantially. Furthermore, as the dissenting justice noted in Quesinberry, the act of robbery involves the consideration of the actus reus while the pecuniary gain circumstances considers the mens rea of the defendant. Perhaps the overlap is more imagined than real. In accord with the individualized determination requirement by the Supreme Court of the United States, Zant, 462 U.S. 862, 103 S.Ct. 2733, I note that the act of the robbery focuses on a circumstance of the crime, whereas the reason for the robbery, that it was committed for pecuniary gain, focuses on the character of the defendant. The evidence relating to the circumstances may overlap, but the considerations are separate and meaningful.
I cannot share the confidence of the majority that “Engberg will now, on remand, be given a lawful sentencing hearing at which a jury can correctly consider life or death upon proper instructions on the law and, if appropriate, impose the death penalty.” Majority opinion on the issues affecting imposition of the capital sentence, at 13. It may be that the majority intended to invoke the language of § 6 — 2—103(e)(iii), W.S.1977 (Cum.Supp.1991), which provides that this court may “[s]et the sentence aside and remand the case for resentenc-ing.” The last sentence of the opinion, however, provides only “case remanded for proceedings consistent with this opinion.” In my view the likelihood of a new sentencing hearing is not high. The case is ten years old, and I think the prosecutor must be possessed of unusual tenacity and perseverance to pursue the capital sentence. *176The state secured a conviction and the imposition of a capital sentence in 1982, and the conviction and sentence were affirmed by this court in 1984. A petition for a writ of certiorari was denied by the Supreme Court of the United States. While the capital sentence was affirmed under the applicable rules, it now is set aside because in the interim someone in another place decided to modify Wyoming’s rules. How is the prosecutor to understand, with any degree of confidence, that if another capital sentence is imposed, someone somewhere will not decide to change the rules while the new sentence is subject to review? The prosecutive effort would be frustrated again, as it is now. For me it is doubtful that Engberg will again face a capital sentence, and the humanitarian philosophy of the majority will be vindicated.
I would affirm both the conviction of first degree murder and the imposition of the sentence to death. The death sentence was arrived at in a lawful and rational manner, and it should be affirmed.
. If the aggravating circumstance is so vague as to permit a jury to impose capital punishment in a "wanton and freakish” manner, it will not pass constitutional muster. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reh’g denied 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976).
" * * * [A] 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, n. 46. To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of persons eligible from the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant, 462 U.S. at 877, 103 S.Ct. at 2742.
. In Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987), the Supreme Court noted that the Nevada statute permitted imposition of capital punishment upon the finding of a single aggravating circumstance and that circumstance was an element of the underlying felony. Even though the constitutionality of that statutory approach was not directly addressed, it is obvious that the Supreme Court was aware of the sequential evaluation of the same circumstance.
. We note that our statute permits the sentencing hearing to be conducted before a new jury impaneled for that purpose if good cause exists. If the same jury did not serve at the sentencing stage, it would be essential that the information regarding the crime be submitted as an aggravating circumstance in order for the jury to adequately perform the sentencing function.