(concurring). I join the majority in voting to reduce the sentence in this case to life imprisonment only because the prosecutor has agreed to waive the death penalty. Although the prosecutor did indicate at the oral argument that he would prefer a remand of the case on the issue of punishment alone, he made it abundantly clear that if we decided against a partial remand, he did not wish a reversal of the conviction but rather would prefer that the Court permit a waiver of the death penalty and a reduction of the sentence to life imprisonment. In In re Waiver of Death Penalty, 45 N. J. 501 (1965) this Court announced that the prosecutor does possess the power to effect a binding waiver of the death penalty. See R. R. 3:1-3A. This administrative order, in my view, does no more than recognize the realities of the situation which arises when the prosecutor does not seek the death penalty and I agree with the majority here that the exercise of this power is valid. If the prosecutor decides not to request the death penalty, his presentation of the State’s case and his request to the jury that a death sentence not be returned will generally lead to a jury -recommendation of life imprisonment if a guilty verdict is returned. In light of this great probability, approaching certainty, that the unwanted death penalty would not be imposed, the question whether the prosecutor’s waiver is legally binding on the jury becomes moot. The reality of the situation is that the waiver, whether considered binding or not, will in practice virtually eliminate the death penalty from the case. Indeed, were a jury to return a death penalty despite a “non-binding waiver” of that penalty by the prosecutor and a favorable charge by the court consonant with such waiver (as Justice Erancis’ dissent recognizes could be done), it well might be argued that the death verdict was influenced by prejudice, passion, or mistake. Since this is so, we ought recognize, *516as we did in our administrative directive, supra, that the waiver is binding, so that time consuming procedures required only in capital cases — such as a voir dire examination of the prospective jurors relating to their views on capital punishment — can be eliminated from the case. This power of the prosecutor to waive the death penalty is consistent with his broad power to seek an indictment for a lesser degree of murder or to nolle pros, an indictment returned.
Accepting as I do the permissibility of a binding pretrial waiver of the death penalty by the prosecutor, I have no difficulty in concluding that, with our approval, he may exercise that power at this posture of the case. Certainly, if we remanded this case for a complete new trial, the prosecutor could waive the death penalty or request the jury to return a life sentence in a manner practically eliminating the possibility of the death sentence penalty. As Justice Jacobs points out, the interests of justice are best served by permitting that waiver to be made now rather than requiring a retrial.
However, if, as my dissenting colleague fears, the majority opinion may be read to imply that this Court has inherent power to substitute its discretion for that of the jury and to reduce a death sentence to life imprisonment over the prosecutor’s objection, I cannot join in the majority opinion. In the absence of the waiver by the prosecutor, I would vote to remand this case for a plenary new trial. Although I have no doubt that this Court has the power to reduce, as excessive, sentences in cases in which the Legislature has left the matter of sentencing (within minimum and maximum limits) to the judiciary’s discretion, I do not believe the power extends to first degree murder cases. N. J. S. %A :113-4 prescribes the death penalty as the punishment for first degree murder, subject only to the jury’s power to “exercise clemency” (Statement attached to bill which became L. 1916, c. 270) by recommending life imprisonment. Nowhere in the statute is there any indication that judges, trial or appellate, are to have any power to circumvent the gen*517eral penalty of death. In many of the authorities cited by the majority, as well as in all the decisions in this State, appellate power to modify a sentence is limited to the imposition of the proper sentence which the trial judge was empowered to impose originally. In a first degree murder case, however, the Legislature has made it clear that the trial judge has no power to determine whether the sentence should be life or death; the Legislature has mandated that this decision is strictly for the jury.
The death penalty in this case may not stand because the trial court erred in its charge to the jury on sentencing, and not because this Court disagrees with the jury’s verdict on an evidentiary level. The statutory language, in my opinion, forecloses the possibility that this Court could reduce a death sentence merely because we felt that had we been jurors we would have recommended life imprisonment in place of what we considered to be an excessive penalty imposed by a jury-1
As Justice Francis’ dissenting opinion reveals, many of the problems in this area might be eliminated by a bifurcated trial on guilt and punishment. Although I see much to commend the adoption of such a procedure for this State, I would reserve decision on the matter. In my opinion, such a drastic innovation is not a fit subject for adoption in the decision of an appeal, but rather should be adopted, if at all, as a formal rule of law after thorough deliberation outside the context of a specific case. This deliberation should include consideration whether legislation would be needed to effect the change. Accordingly, I request that we place the question on the agenda of the next judicial conference.
Justice "Hafemaf joins in this opinion.
I do not express a view here inconsistent with this Court's power to set aside a death sentence as against the weight of the evidence and order a complete new trial. In such a case, moreover, the prosecutor well might wish, as here, to waive the death penalty, eliminating the necessity for a new trial.