concurring in part, and in part dissenting.
With all due respect to my brothers who make up *79the majority in this case, I must in part dissent from their decision in this case. I wholeheartedly concur in all the conclusions reached by the majority, including its analysis and interpretation of how we are to apply L.B. 711, Laws 1978, except as to its single conclusion that the death penalty should be imposed in this case. My review of those cases included in the majority’s addendum compels me to reach a contrary conclusion. I would modify the judgment of the trial court by declaring that the defendant be sentenced to a term of life imprisonment rather than be sentenced to execution.
So that there be no confusion with regard to the matter, let me clearly and unequivocally state that my decision is not based upon any conviction that in no case should the death penalty be imposed. Quite to the contrary, I am of the mind that in an appropriate case under the law as it presently exists, the imposition of the death penalty would be both lawful and appropriate. It is just that I conclude in this case the law does not authorize the imposition of the death penalty.
I totally reject the contention made by some that the imposition of the death penalty is either immoral or unethical when imposed by a society pursuant to its criminal code and subject to the further requirement that the defendant be afforded due process of law. We find the imposition of capital punishment in an appropriate case provided for as early as the Mosaic Code and perhaps even before. I have difficulty concluding that that which is embodied in the Mosaic Code can be either unethical or immoral.
It is true that some societies, through the ages, have discriminated in the manner in which capital punishment has been administered or have imposed it in a barbaric manner. Neither of those actions can be condoned. But the mere fact that a society prescribes the imposition of the death penalty in an *80appropriate case does not cause it to be either immoral or unethical.
I, likewise, reject the contention made by some that the imposition of the death penalty serves as a deterrent to future crime. The evidence with regard to that matter is either totally lacking or, if available, is so inconclusive that it is not reliable. Except in rare instances, the crime itself for which the penalty is imposed is of such a nature that few, if any, give much thought to the ultimate consequences.
My rationale for recognizing the right of a society to impose capital punishment in an appropriate case is, rather, based upon a view that a civilized society has a right to assign to that crime or crimes, which it considers to be the most heinous, the most severe penalty it can inflict. That is to say, a society may declare in advance what crime or crimes it considers to be of the highest order and the worst offense to mankind by providing for a penalty which likewise is of the highest order and the most severe. In so doing, the society has clearly and unequivocally announced to its members that this crime for which the ultimate penalty is imposed is a crime separate and apart from all other crimes which can or may be committed within the society. It is an attempt by the people, through their legislative body, to issue a pronouncement with regard to the nature of the crime. It is on that basis that I find the Legislature of this state may appropriately ascribe, as an alternative penalty for the commission of the most heinous crime (first degree murder), the imposition of the death penalty. It should therefore be clear then that my disagreement with the majority today is not based upon any notion that capital punishment is never appropriate.
My difficulty arises by reason of my analysis of the 32 cases reviewed by the majority in reaching its conclusion that the imposition of the death penalty in *81this case is appropriate. The majority notes that “in all the death penalty cases previously affirmed or now pending in this court, each has involved at least three separate and distinct statutory aggravating factors and only one or no statutory mitigating factors * * * any objective weighing and balancing of aggravating and mitigating circumstances and comparison to the other death penalty cases now pending, establishes that the death sentence in the case now before us is not excessive or disproportionate to the death penalties imposed in the other death penalty cases.” With that statement I agree. But it is my belief that the fact that this case squares with the seven other cases in which the death penalty has been imposed does not answer the question. I am more concerned, as I believe L.B. 711, Laws 1978, requires me to be concerned, as to how this case squares with the remaining 25 cases where the death penalty was not imposed.
It was noted by this court in State v. Stewart, 197 Neb. 497, 250 N. W. 2d 849, “Following the issuance of the opinion of the United States Supreme Court in Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the Nebraska Legislature, in an effort to conform with the requirements for validity of death penalty statutes set forth in Furman, revised Nebraska’s statute, and in 1973 enacted L.B. 268, R. R. S. 1943, which now appears as sections 29-2519 to 29-2546, R. R. S. 1943.” L.B. 268, Laws 1973, prescribed a series of aggravating circumstances and mitigating circumstances which were to be considered by the trial court in determining whether to impose the death penalty. We early concluded that the fact that there was a list of aggravating circumstances and a list of mitigating circumstances did not mean that one was to simply add up the aggravating circumstances and add up the mitigating circumstances and subtract one from the other.
Again, in State v. Stewart, supra, we said, “-‘It *82must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present. Review by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great.’ ”
We further went on in State v. Stewart, supra, to quote from the Florida decision of Alvord v. Florida, 322 So. 2d 533 (Fla., 1975): “ ‘There is no way that the Legislature could program a judicial computer with all of the possible aggravating factors and all of the possible mitigating factors in each case. See State v. Dixon, supra. The law does not require that capital punishment be imposed in every conviction in which a particular state of facts occur. The statute properly allows some discretion, but requires that this discretion be reasonable and controlled. No defendant can be sentenced to capital punishment unless the aggravating factors outweigh the mitigating factors. However, this does not mean that in every instance under a set state of facts the defendant must suffer capital punishment.’ ” It therefore seems quite clear from what we have heretofore said that while L.B. 268, Laws 1973, prescribed aggravating and mitigating circumstances, they were intended to serve as a guide and not as an absolute. Some latitude was still left with the courts as to when the death penalty was to be imposed. Were *83nothing more involved in this case than L.B. 268, Laws 1973, I might be able to agree with the majority. I must, however, continue my analysis of this case in light of the fact that after adopting L.B. 268, Laws 1973, our Legislature saw fit to adopt L.B. 711, Laws 1978. I must, therefore, presume that the Legislature intended L.B. 711, Laws 1978, to serve as either an addition to or a modification of L.B. 268, Laws 1973. Otherwise, there would have been little purpose or sense in adopting that second act. I believe that a reading of L.B. 711, Laws 1978, discloses that the Legislature intended to add to L.B. 268, Laws 1973.
Under the provisions of L.B. 711, Laws 1978, we are now not only required, before imposing the death sentence, to consider aggravating and mitigating circumstances but we are further required, under the provisions of section 29-2521.03, R. S. Supp., 1978, to “determine the propriety of the sentence in each case involving a criminal homicide by comparing such case with previous cases involving the same or similar circumstances. No sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances.” What constitutes a “circumstance” is not spelled out. Likewise, L.B. 711, Laws 1978, imposes on the trial court in the first instance, and this court on appeal, a duty before ordering the death penalty to consider (1) whether sufficient aggravating circumstances exist to justify imposition of a sentence of death, (2) whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances, or (3) whether the sentence of death is excessive , or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Subsection (3) was added to L.B. 268, Laws 1973, by L.B. 711, Laws 1978. The Supreme Court is authorized to reduce any sentence it finds not to be consistent *84with sections 29-2521.01 to 29-2521.04, 29-2522, and 29-2524, R. S. Supp., 1978. All of that makes it seem clear to me that not only is this court required to examine aggravating and mitigating circumstances, but in addition to that we are supposed to in some manner place each first degree murder case one on top of the other to see whether or not they all conform. While I may be the first to concede that imposing such a duty upon the court is at best difficult and perhaps impossible, nevertheless, I cannot find how I can ignore that requirement. I do not by saying this suggest that the majority has ignored that requirement. They have reached a different conclusion by reason of making a significant distinction in the circumstances. For me, however, once the act of intentionally killing another is established, I find the other circumstances to be of less significance and therefore the distinctions much more difficult to make. It is in this area where I differ with the majority. It is simply a fact that when I place the cases one on top of the other, I do not reach the same conclusion as reached by the majority. For me, factors such as the age of the defendant or the previous record of the defendant are not nearly as significant as the circumstances under which the murder was committed.
Of the remaining 25 cases where life sentences have been imposed in lieu of death, I find the following to be true. In State v. Nokes, 192 Neb. 844, 224 N. W. 2d 776, the defendant pleaded guilty to one count of first degree murder for the killing of Wilma Hoyt and one count of second degree murder for the killing of Edwin Hoyt. The facts disclosed that the defendant shot and killed the couple, dismembered their bodies with a butcher knife, wrapped the pieces, and placed them in a freezer. Later the frozen pieces were removed from the freezer and thrown into a lake. The defendant was given a life sentence.
*85In State v. Sims, 197 Neb. 1, 246 N. W. 2d 645, the defendant was convicted of first degree murder. The facts disclose that prior to the shooting the deceased had been driving his automobile. The defendant and the deceased were involved in a near accident which resulted in the defendant having words with the deceased. After a brief conversation the defendant returned to his automobile. A short time later the defendant returned to the area where the deceased was parked. A passenger in the defendant’s automobile stepped out of the car and fired a pistol in the air. The defendant removed a shotgun from the car and walked rapidly in the direction of the deceased who was standing against his car. The defendant stopped when he was about 10 feet away from the deceased and fired one shell which struck the deceased in the abdomen, causing his death. The defendant was sentenced to life imprisonment.
In State v. Stewart, 197 Neb. 497, 250 N. W. 2d 849, the evidence discloses that the defendant, though only 16 years of age, was engaged in the business of selling marijuana. He induced his suppliers to meet him so that he could “rip them off.” The defendant, without provocation, shot the two dealers, hitting them in the back of the head, fatally shooting one who died instantaneously and wounding the other. The wounded one fell to the floor of the van and observed the defendant spreading gas in the van and igniting it in an effort to conceal the crime. The defendant was sentenced to life imprisonment.
In State v. Record, 198 Neb. 530, 253 N. W. 2d 847, the defendant and another were driving in an automobile when they decided to rob anyone who next came along. They drove to approximately 180th and Dodge Streets in Omaha and parked on a side road waiting for someone to drive by so that the defendant could shoot and rob someone. Approximately 3 a.m., a car driven by the victim passed their parked *86car, proceeding east on Dodge Street. With one of the parties driving, the victim’s car was pursued. As the car drove alongside it as if to pass, the defendant fired a shot, breaking the glass and killing the driver. The defendant was sentenced to life imprisonment.
In State v. Scott, 200 Neb. 265, 263 N. W. 2d 659, the defendant was charged with murder in the perpetration of or an attempt to perpetrate a robbery. The evidence discloses that the defendant entered the home of William and Bertha McCormic in Omaha and demanded money at gunpoint. A scuffle ensued and Mr. McCormic was shot twice and killed, and Mrs. McCormic was shot twice and wounded. Mr. McCormic was 92 years of age at the time. Mrs. McCormic, age 83, had impaired vision and could not describe her assailant with any specificity. The defendant was sentenced to life imprisonment.
In State v. Prim, 201 Neb. 279, 267 N. W. 2d 193, the defendant was charged with first degree murder, having shot and killed the defenseless operator of a gas station during the commission of a robbery. He was sentenced to life imprisonment.
Likewise, there are eight additional cases included in the addendum in which a life sentence was imposed for first degree murder and not appealed to this court. In State v. Anderson the defendant, though admittedly only 15 years old, had three previous felonies. During the course of a robbery committed by jumping into the victim’s automobile, the defendant shot the victim in the head. He was sentenced to life imprisonment.
In State v. Hatcher the defendant, being pursued by a police officer, engaged in a struggle with the police officer, and as the officer struggled with the defendant the officer’s gun went off twice, the second time hitting the officer in the head. The defendant was sentenced to life imprisonment.
In State v. Brown the defendant killed his victim *87during a robbery. He was sentenced to life imprisonment.
In State v. Jimmie Ray Anderson, the 34-year-old defendant and his wife resisted arrest by a patrolman and in the struggle in the police car the patrolman was shot and killed. The defendant was sentenced to life imprisonment.
In State v. Schaeffer, the defendant, a 16-year-old, together with a friend, forced the owner of the Ace Hardware Store in Grand Island into their car at gunpoint where, after robbing him, they shot him 17 times. The defendant was sentenced to life imprisonment.
In State v. Floyd, the defendant, 37 years old, shot and killed an unarmed gas station attendant during the course of a robbery. He was sentenced to life imprisonment.
In State v. Rowert, the 23-year-old defendant who had been drinking robbed another who also was intoxicated and who had a substantial sum of money on his person. The defendant determined to kill the victim so that the defendant could not be identified. The defendant lured the victim out of a bar and drove him out into the country where he took the money and then slit the defendant’s throat and then decapitated him. He was sentenced to life imprisonment.
In State v. Marshall the defendant, a 20-year-old working in a flower shop in Lincoln, robbed the owner and in the course of the robbery struck the owner in the head several times with a metal bar from which the victim died. He was sentenced to life imprisonment.
In each of the cases I have referred to where a life sentence has been imposed, one can find distinguishing factors, to be sure, and in that regard I cannot quarrel with the majority in its conclusion. I’m simply unable to make such fine distinctions with regard to, on the one hand, the matter of killing and, *88on the other hand, the imposition of the death penalty. I have difficulty seeing how the killing of a defenseless, faceless victim driving an automobile is any less heinous than the case at bar. Once the facts establish the totally unnecessary, meaningless, and wasteful but deliberate, intentional killing of another, I have difficulty significantly distinguishing the circumstances under which the crime was committed. It is my view that the Legislature, in adopting L.B. 711, Laws 1978, must have intended to further restrict the imposition of the death penalty as previously provided for in L.B. 268, Laws 1973, by directing us not to impose the death penalty if on previous occasions of cruel and senseless killings we have not imposed the death penalty.
My conclusions herein legitimately pose two questions: (1) If the death penalty is not appropriate in this case, when will it be appropriate, and (2) has the adoption of L.B. 711, Laws 1978, placed us into such a mold that we may no longer impose the death penalty under any circumstances where a single person has been given a life sentence under similar circumstances. With regard to the first question, let me simply say that I believe I will recognize an appropriate case when I see it. I have no doubt that given that appropriate case, based upon all the things we have done in cases heretofore, I will be able to conclude that the imposition of the death penalty is intended even in light of L.B. 268, Laws 1973, and L.B. 711, Laws 1978, and I will be able to affirm the imposition of that penalty. Unfortunately, I cannot in advance articulate how or under what circumstances that may be.
With regard to the second question, whether we are now in such a mold from which it may be difficult, if not impossible, to get out, I can simply say that that is a matter which must appropriately be considered by the Legislature. Too often, courts are accused of intruding into the legislative arena. I *89choose not to do so. I believe the Legislature intended to limit situations in which the death penalty is imposed. If, in fact, the passage of L.B. 711, Laws 1978, has made the imposition of the death penalty difficult, if not impossible, then it is for the Legislature to reconsider its action.
Nothing I have said here should in any manner be misconstrued so as to permit one to conclude that I do not consider the commission of murder a heinous, appalling, and virtually unforgiving crime. Indeed I do. I hold no belief that one who commits such a crime is entitled to anything other than the most severe punishment. I am, however, constrained in my actions as a judge. On the one hand, I am obligated to impose a penalty required by law even in those instances where I may personally disagree. By the same token, I must likewise refrain from imposing a penalty where restrained by the law, even in those cases in which I may personally disagree. That is the situation in which I find myself in this case. The murder in this case was a terrible, horrible, unforgiving crime. Yet it is likewise, in my mind, no worse (if such comparison with regard to murder can be made) than the senseless and meaningless taking of lives for which we have heretofore imposed life sentences. It is for that reason that I would disagree -with the majority in that one limited area, and I would modify the judgment herein to provide that the defendant should be confined in the Nebraska Penal and Correctional Complex for the remainder of his natural life.