concurring in part, and in part dissenting.
*327I concur in the majority’s opinion in this case in all respects save with regard to the majority’s conclusion that the imposition of the death penalty in this case is constitutionally permissible. In that regard, I dissent.
Even if I disregard the provisions of 1978 Neb. Laws, L.B. 711, now Neb. Rev. Stat. §§ 29-2521.01 et seq. (Reissue 1979), adopted subsequent to the sentencing in this case, I must of necessity still conclude that the imposition of the death penalty in this case is in violation of the appellant’s constitutional rights which existed prior to the adoption of L.B. 711.
A reading of the various opinions rendered in the case of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), makes it manifestly clear that the adoption of statutes such as Neb. Rev. Stat. § 29-2522 (Reissue 1979), and the provisions of L.B. 711, are simply a response to the U.S. Supreme Court’s recognition that it is a violation of an individual’s constitutional rights when the decision to execute is arrived at in an arbitrary and discriminatory manner. The fact that we may create criteria to aid us in imposing the death penalty does not overcome the constitutional prohibition if, after applying the formula, we nevertheless continue to impose the penalty in an arbitrary and capricious manner.
As noted by Mr. Justice Douglas in Furman, supra at 242: “The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions.
“It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
*328And, further, in the same Furman decision we find the words of Mr. Justice Stewart, wherein he says at 390-91: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. [Citation omitted.] But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”
An examination of but a few cases within this jurisdiction makes it clear that the imposition of the death penalty in the instant case is, indeed, arbitrary and capricious.
In State v. Scott, 200 Neb. 265, 263 N.W.2d 659 (1978), the defendant was charged with murder in the perpetration of or in an attempt to perpetrate a robbery. The evidence disclosed that the defendant entered the home of William and Bertha McCormic in Omaha and demanded money at gunpoint. A scuffle ensued, 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 was 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 (1978), the defendant was charged with first degree murder, having shot and killed the defenseless operator of a gas station during the commission of a rob*329bery. He was sentenced to life imprisonment.
In State v. Hatcher, unappealed to this court, 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, unappealed to this court, the defendant killed his victim during a robbery. He was sentenced to life imprisonment.
In State v. Jimmie Ray Anderson, unappealed to this court, a 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. Floyd, unappealed to this court, 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.
Each of those killings was senseless and unforgiving. Yet we, as courts, are required to be sure that the Constitution of both this state and the United States is always followed, regardless of other factors. Where the U.S. Supreme Court has declared that the arbitrary imposition of the death penalty violates the Constitution, we have no choice and may not approve the imposition of the death penalty when, as here, it appears to be arbitrarily imposed.
The words of Mr. Justice Marshall, joined by Mr. Justice Brennan, in Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), appear each day to be more applicable. Marshall said in Godfrey v. Georgia, supra at 438-39: “I believe that the death penalty may not constitutionally be imposed even if it were. possible to do so in an evenhanded manner. But events since Gregg make that possibility seem increasingly remote. Nearly every week of every year, this Court is presented with at least one peti*330tion for certiorari raising troubling issues of noncompliance with the strictures of Gregg and its progeny. On numerous occasions since Gregg, the Court has reversed decisions of State Supreme Courts upholding the imposition of capital punishment, frequently on the ground that the sentencing proceeding allowed undue discretion, causing dangers of arbitrariness in violation of Gregg and its companion cases. These developments, coupled with other persuasive evidence, strongly suggest that appellate courts are incapable of guaranteeing the kind of objectivity and evenhandedness that the Court contemplated and hoped for in Gregg.”
I would affirm the action of the trial court in denying post conviction relief except with regard to the matter of the death penalty. In that regard, I would order the appellant be incarcerated for the balance of his natural life.