concurring and dissenting.
I concur in the majority opinion affirming the convictions for murder and robbery in this case but dissent to the imposition of the death sentence, as I find it disparate in view of the sentences imposed upon one of the other two defendants for the same murder.
In answer to questions I asked in oral argument, I understood counsel for the state to say that the co-defendant who did the actual killing was allowed to plead guilty and he received a sentence to life imprisonment. The third co-defendant entered a plea to a lesser offense and received a sentence of 10 years imprisonment. This particular defendant tried to prevent the victim’s death and so I will not dwell on the sentence he received in the case.
What disturbs me is that I understood state’s counsel at oral argument also to say that he could see no difference between what the defendant did who received the life imprisonment and what this defendant did who received the death sentence. With that in mind, I fail to see how we can conclude that equal justice under the law has beep dispepsed to these two defendants.
I wrote the opinion for the majority of this court in Coley v. State, 231 Ga. 829 (204 SE2d 612) (1974) upholding the consitutionality of the death penalty statute and it was subsequently approved by the U. S. Supreme Court in Gregg v. Georgia, — U. S. — (96 SC 2909, 49 LE2d 859) (1976). I have voted to affirm the death sentence in a number of cases decided by this court since that date. However, I will not vote to affirm the death sentence in a case which I think fails to meet the requirements of the death penalty statute.
The Supreme Court of the United States leaned *805heavily in its Gregg opinion on the responsibility of this court to review death sentences as mandated under Code Ann. § 27-2537. Section 27-2537 (c) (3) requires this court to determine whether "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”
I cannot conscientiously conclude that the sentence of death given this defendant is neither excessive nor disproportionate when compared to the sentence of life given the co-defendant who did the actual killing in the case. One cannot find a more similar case to compare than the case of the perpetrator co-defendant who was given the life sentence and, therefore, I would vote to vacate the death sentence in this case and remand with direction that a similar sentence be imposed upon this defendant.