concurring in the result.
I concur in the result reached by the majority in this case. I believe, beyond question, that the facts of this case satisfy the requirements of Nebraska law and justify the sentencing panel’s sentence of death. I am not, however, able to adopt in its entirety all of the language of the majority, and for that reason I concur separately.
As observed by the majority, Joubert maintains that the sentencing panel erred in finding that Neb. Rev. Stat. § 29-2523(l)(d) (Reissue 1985) applied, in that these murders were not “especially heinous, atrocious, cruel, and [sic] manifested exceptional depravity by ordinary standards of morality and intelligence.” In support of his position Joubert argues that this case is identical to State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985), wherein this court held that the murder was not especially heinous and that, therefore, the death penalty could not be imposed.
Joubert, like so many, misread our holding in State v. Hunt, supra, and fails to understand the distinction to be made between this case and Hunt. The language of the specific aggravating circumstance § 29-2523(l)(d) reads as follows: “The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.” (Emphasis supplied.) Why the Legislature chose to add the word “especially” to modify “heinous” is not clear. However, a number of other *436jurisdictions, including Alabama, Arizona, Florida, Louisiana, Mississippi, North Carolina, and Wyoming, have used virtually identical language in their death penalty statutes, and states such as Georgia have used similar language. The critical words, as noted by the U.S. Supreme Court and several state courts, as well as by this court, are “murder” and “especially.” As we noted in State v. Hunt, supra at 725, 371 N.W.2d at 721: “In order for aggravating circumstance (l)(d) to be present, the method of killing must entail something more than the ordinary circumstances which attend any death-dealing violence.” As limited by the Legislature, the murder must not only be heinous, which means horrible, but it must be “especially” heinous, which means horribly horrible. There is no requirement in the Constitution which requires this exact standard. Nevertheless, the Legislature has imposed such a standard upon the courts, and we are duty-bound to follow the limitation. The Legislature alone prescribes the conditions under which the death penalty may be imposed.
State v. Hunt, supra, was certainly not the first or only case to use this definition of “especially heinous,” and it, in fact, reflects the nearly unanimous position taken by courts which have considered the question. Its holding is consistent with our earlier holding in State v. Reeves, 216 Neb. 206, 227, 344 N.W.2d 433, 447 (1984), wherein we held that aggravating circumstance (l)(d) was not present where a murder was achieved “swiftly and suddenly.” Nor was it present in State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977), under similar, but even more gruesome, circumstances.
This view, moreover, is consistent with national precedent. In the case of Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), the U.S. Supreme Court reviewed the Georgia statute which required that before the penalty of death may be imposed the sentencing panel must find that the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ga. Code Ann. § 17-10-30(b)(7) (1982).
The facts of Godfrey, supra at 425, as disclosed by the opinion, were that the defendant
*437got out his shotgun and walked with it down the hill from his home to the trailer where his mother-in-law lived. Peering through a window, he observed his wife, his mother-in-law, and his 11-year-old daughter playing a card game. He pointed the shotgun at his wife through the window and pulled the trigger. The charge from the gun struck his wife in the forehead and killed her instantly. He proceeded into the trailer, striking and injuring his fleeing daughter with the barrel of the gun. He then fired the gun at his mother-in-law, striking her in the head and killing her instantly.
The jury imposed sentences of death and found beyond a reasonable doubt that “ ‘the offense of murder was outrageously or wantonly vile, horrible and inhuman,’ ” as required by statute. Id. at 426. In reversing the death penalty the U.S. Supreme Court said at 428-29:
[I]f a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates “standardless [sentencing] discretion.” Gregg v. Georgia, supra, at 196, n. 47. ... ... A person of ordinary sensibility could fairly characterize almost every murder as “outrageously or wantonly vile, horrible and inhuman.”
In then concluding, however, that this ordinary sensibility was not sufficient to establish the aggravating circumstance required by the Georgia statute, the U.S. Supreme Court said at 446 U.S. at 433:
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, it “is *438of vital importance to the defendant and to the community that any decision tó impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”
Similarly, a number of state courts have passed upon the meaning of this aggravating circumstance. Their examination provides great assistance in applying it in the instant case. In State v. Goodman, 298 N.C. 1, 24-25, 257 S.E.2d 569, 585 (1979), the North Carolina court said:
G.S. 15A-2000(e)(9) states that the jury may consider as an aggravating circumstance justifying the imposition of the death penalty the fact that the “capital felony was especially heinous, atrocious, or cruel.” While we recognize that every murder is, at least arguably, heinous, atrocious, and cruel, we do not believe that this subsection is intended to apply to every homicide. By using the word “especially” the legislature indicated that there must be evidence that the brutality involved in the murder in question must exceed that normally present in any killing before the jury would be instructed upon this subsection. State v. Stewart, supra; State v. Rust, supra; State v. Simants, 197 Neb. 549, 250 N.W. 2d 881, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed. 2d 158 (1977).
The Florida provision concerning this aggravating factor is identical to ours. Florida’s Supreme Court has said that this provision is directed at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So. 2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950 [sic], 40 L.Ed. 2d 295 (1974); see also, State v. Alford, 307 So. 2d 433 (Fla. 1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed. 2d 1221 (1976). Nebraska has also adopted the Florida construction of this subsection. Both Florida and Nebraska have limited the application of this subsection to acts done to the victim during the commission of the capital felony itself. State v. Rust, supra; Riley v. State, 366 So. 2d 19 (Fla. 1979). We too believe that this is an appropriate construction of the language of this provision. Under this construction, subsection (e)(9) will *439not become a “catch all” provision which can always be employed in cases where there is no evidence of other aggravating circumstances.
And in State v. Monroe, 397 So. 2d 1258, 1274-75 (La. 1981), the Louisiana Supreme Court said:
Although the jury found the instant offense to have been committed in an “especially heinous, atrocious or cruel manner,” this finding cannot stand. It is true that the murder was brutal — the victim lost over two quarts of blood, her lungs were punctured and one of her ribs was severed. Her death was not instantaneous, and she lived long enough to call out for her daughter and reach for the telephone.
Nonetheless, in order for a murder to be “especially heinous,” there must exist evidence that there was “torture or the pitiless infliction of unnecessary pain on the victim.” State v. English, 367 So.2d 815, 823 (La. 1979). State v. Clark, 387 So.2d 1124 (La. 1980), provides an example of what is meant by “especially heinous.” In that case the defendant stabbed the victim thirty-five times before shooting him with a gun. In the instant case, the “wounds were inflicted to kill, not to maim or to inflict pain.” State v. Culberth, supra, at 851. While there is some evidence in this case that the offense was heinous and cruel, it was not proved beyond a reasonable doubt that the instant offense was especially heinous.
(Emphasis supplied.)
In Hopkinson v. State, 632 P.2d 79 (Wyo. 1981), the defendant, tried under a statute identical to the Nebraska statute, argued that a jury could find any murder to be especially heinous, atrocious, or cruel and therefore could conclude that this aggravating circumstance is present in all cases. He contended that it, therefore, gave the jury a free rein to decide to sentence a person to death in every case and, thus, in effect, abolished the requirements previously established by the U.S. Supreme Court for imposing the death penalty. In rejecting that argument the Wyoming court said at 153-54:
We disagree with appellant’s conclusion. The statute *440does not fail to properly channel the jury’s sentencing decision and does not grant it unfettered discretion to impose the death penalty for arbitrary and capricious reasons. First, the statute requires the jury to find the murder to have been “especially heinous, atrocious or cruel.” Webster’s Third New International Dictionary defines heinous as “hatefully or shockingly evil.” Thus the term “especially heinous” is more than just hatefully or shockingly evil. The murder, to be so classified, must demonstrate that the consciencelessness of the defendant is not only an outrage but also a dangerous and unrestrainable threat to society. Only when this is found can the murder properly be categorized as especially heinous. Since very few murders can be regarded in this manner, the term is not impermissible and vague.
The view of the Wyoming court is in accord with that of the U.S. Supreme Court. In Proffitt v. Florida, 428 U.S. 242, 255, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), reh’g denied 429 U.S. 875, 97 S. Ct. 198, 50 L. Ed. 2d 158, Justices Stewart, Powell, and Stevens, in the Court’s plurality opinion, said:
In particular, the petitioner attacks the eighth and third statutory aggravating circumstances, which authorize the death penalty to be imposed if the crime is “especially heinous, atrocious, or cruel,” or if “[t]he defendant knowingly created a great risk of death to many persons.” §§ 921.141(5)(h), (c) (Supp. 1976-1977). These provisions must be considered as they have been construed by the Supreme Court of Florida.
That court has recognized that while it is arguable “that all killings are atrocious . . . [s]till, we believe that the Legislature intended something ‘especially’ heinous, atrocious or cruel when it authorized the death penalty for first degree murder.” Tedder v. State, 322 So. 2d, at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.”
The necessary distinction to be made between what is simply heinous and what is especially heinous is pointed out by the *441Alabama court in Berard v. State, 402 So. 2d 1044 (Ala. Crim. App. 1981), in which the trial court found that the homicides were “brutal” and therefore ordered the imposition of the death penalty. In discussing that matter the Alabama court said at 1050: “That the homicides were ‘brutal’ fails to conform to § 13-11-6(8) which requires a finding that the crime was ‘especially heinous, atrocious or cruel.’ (Emphasis supplied.) The crime was in fact brutal, but the statute requires more.”
Later, in the case of McCray v. State, 416 So. 2d 804 (Fla. 1982), the Florida Supreme Court again reviewed its statute, nearly identical to Nebraska’s, and reversed a sentence of death because it found that the crime was not especially heinous, atrocious, or cruel, as previously defined by the Florida court. The facts of McCray indicated that a murder in which the victim died from three bullets to the stomach did not meet the statutory definition.
Similarly, in Clark v. State, 443 So. 2d 973, 977 (Fla. 1983), the Florida court again said:
Directing a pistol shot to the head of the victim does not establish a homicide as especially heinous, atrocious, or cruel. Kampff v. State, 371 So.2d 1007 (Fla.1979). Although Mr. Satey testified that he heard his wife moan after being shot, there was no evidence of whether she was conscious after being shot, not [sic] did the medical examiner indicate how long Mrs. Satey survived or what degree of pain, if any, she suffered. Although the helpless anticipation of impending death may serve as the basis for this aggravating factor, there is no evidence to prove that Mrs. Satey knew for more than an instant before she was shot what was about to happen to her. Similarly, as pitiable as were Mr. Satey’s vain efforts to dissuade his attackers from harming his wife, it is the effect upon the victim herself that must be considered in determining the existence of this aggravating factor.
The following year, Mississippi, in the case of Billiot v. State, 454 So. 2d 445 (Miss. 1984), considered the “especially heinous, atrocious or cruel” provision of its statute, saying at 464:
[W]hat is intended by the words “especially heinous, atrocious or cruel”, “are those capital crimes where the *442actual commission of the felony was accompanied by such additional facts as to set the crime apart from the norm of capital felonies — the consciencelessness [sic] or pitiless crime which is unnecessarily tortuous [sic] to the victim.”
During that same year Florida, in Gorham v. State, 454 So. 2d 556 (Fla. 1984), held that where one shot penetrated the victim’s heart, causing death within 10 seconds, and where the evidence disproved any possibility of prolonged and torturous captivity and there was no evidence whatsoever that the victim apprehended certain death more than moments before he died, the aggravating circumstance in support of the death penalty that the murder was especially heinous, atrocious, and cruel, being based as it was upon the victim’s having been thereafter shot twice in the back, could not be sustained.
In so holding, the Florida court said in Gorham, supra at 559: “While the murder was, of course, a cruel and unjustifiable deed, there is nothing about it to ‘set the crime apart from the norm of capital felonies.’ ” The evidence indicated that the victim was already dead when the next two shots were fired. The Florida court’s position was not based upon its notion that the murder was not terrible or even heinous but that, in order for the statute to be constitutional and not permit the imposition of the death penalty in every case, the aggravating circumstance “especially heinous” must be interpreted to be limited to those few cases in which the murder was committed in such a manner as to cause torture to the victim before death in a conscienceless and pitiless way. This distinction is made not because the courts are without sensitivity but, rather, because the death penalty may not be imposed unless clear, rigid standards are first met. See, Thompson v. State, 456 So. 2d 444 (Fla. 1984); Rembert v. State, 445 So. 2d 337 (Fla. 1984); State v. Wilson, 467 So. 2d 503 (La. 1985).
One may question why Supreme Courts are, in a sense, required to serve as “legal pathologists” who must, in a ghoulish fashion, dissect murders in order to separate the “especially heinous” from the merely “heinous,” with nothing more than a word gauge which measures when a murder ceases being merely horrible and brutal and becomes “conscienceless, *443pitiless, and unnecessarily torturous to- the victim.” That question must, however, more appropriately be directed to the legislatures which established the standards and not to the courts upon which the duty is imposed.
The lesson of all these cases is simply that before a court can find that the murder was “especially heinous,” evidence must be adduced by the prosecution that more than a murder occurred. For a murder to satisfy the aggravating circumstance created by § 29-2523(l)(d), the evidence which is relevant for purposes of determining whether the murder was “especially heinous” must establish beyond a reasonable doubt that the victim, while alive, was tortured. What occurs to the body after death may often be even more reprehensible. Yet it does not, under the law, fall within the standards established by our Legislature for determining the presence of an “especially heinous” murder.
The evidence in this case is overwhelming that both young men were horribly tortured while still alive. Their murders were clearly conscienceless and pitiless, and Joubert is most deserving of a penalty of death within the meaning of the law.
Because of reasons more detailed by me in my concurrence and dissent in State v. Palmer, ante p. 282, 399 N.W.2d 706 (1986), I need not here discuss my view of the phrase “exceptional depravity” as used in § 29-2523(l)(d). Unlike the majority, I do not believe that there are two separate prongs, but simply one, and that in the instant case this murder was especially heinous, atrocious, and cruel. That it “manifested exceptional depravity” is merely a further factor in establishing that it was especially heinous, atrocious, and cruel. My point of disagreement with the majority is not the result reached by the majority, but the path taken in arriving at that conclusion.
Further, for reasons more fully set out in my concurrence and dissent in State v. Palmer, supra, I do not agree with the majority that only cases in which the death penalty has been imposed are to be used when conducting the proportionality review required by Neb. Rev. Stat. §§ 29-2521.01 to 29-2521.03 (Reissue 1985). I do, however, believe that the facts and circumstances in this case are so unique that there are no other cases with which a comparison can be made and that regardless *444of which cases are used to conduct the review, one ultimately reaches the conclusion that the penalty of death in this case was properly imposed under the standards established by the Nebraska Legislature.