¶1concurring specially.
¶2In Furman v. Georgia, 408 U. S. 238, supra, there were 10 opinions, one per curiam (representing the composite view of a majority of the court as to the proper result), and one by each of the Justices. Justices Douglas, Brennan, Stewart, White and Marshall found against the imposition of the death penalty in Furman. The Chief Justice and Justices Blackmun, Powell and Rehnquist dissented.
¶3The Chief Justice noted that Justice Brennan and Justice Marshall had concluded that the Eighth *867Amendment prohibits capital punishment under all circumstances as being cruel and unusual punishment, that Justice Douglas had determined that the death penalty can traverse the Eighth Amendment but did not necessarily require its final abolition, and Justice Stewart and Justice White had concluded that the death sentences before the court must be set aside because prevailing sentencing practices did not comply with the Eighth Amendment. 408 U. S. 375.
¶4Presumably the validity of Georgia’s revived death penalty statute, Ga. L. 1973, p. 159 (Code Ann. § 27-2534.1), would be found valid by the Chief Justice and the other three dissenting Justices. Presumably Justices Brennan and Marshall would find it invalid. Therefore, in order to judge the validity of the death sentence in this case it becomes necessary in my view to undertake to ascertain the positions of Justice Douglas, Justice Stewart and Justice White upon this issue.
¶5This court found the 1973 Act to be valid in Coley v. State, 231 Ga. 829, supra, holding, as I read that opinion, that the Act permits the imposition of the death penalty controlled by clear and objective standards so as to produce non-discriminatory application. 231 Ga. 834. Justice Gunter, in his concurring and dissenting opinion, pointed out that the Act authorized the judge or jury to decline to impose the death penalty notwithstanding the presence of statutory aggravating circumstances. 231 Ga. 840-841.
¶6It therefore has become necessary to undertake to ascertain how the three specified Justices, and the writer, see this issue: Where a death sentence may be withheld by uncontrolled discretion, is the imposition of the death sentence controlled by clear and objective standards nevertheless invalid?
¶7It is difficult to divine how the three would answer, but as Justice White wrote, even though my conclusions cannot be proved, I must arrive at judgment. 408 U. S. 313. As I read Justice Douglas’ concurring opinion, he would hold invalid the sentence of death where the alternative of imprisonment was left to the uncontrolled discretion of judges or juries. Justice Stewart would, I believe, hold the death sentence invalid under a statute *868where the legislature has not found the penalty to be invariably necessary and where others convicted of murders and rapes just as reprehensible do not receive the unique penalty. Finally, Justice White would, I believe, hold invalid the sentence of death where juries, in their discretion, may and frequently do refuse to impose it no matter what the circumstances of the crime.
¶8Not one of the three Justices can I feel with certainty would approve a death statute which prevents uncontrolled imposition of the penalty but which permits discretionary non-imposition.
¶9Moreover, the defect, as they might see it, of discretionary non-imposition, may be compounded by the following:
¶10The prosecutor has discretion in bargaining for a plea of guilty in exchange for a non-death sentence. Once on trial he exercises discretion in deciding whether to ask the jury to impose the death penalty. The trial judge has discretion to grant a new trial, accept a guilty plea, and impose a non-death sentence upon that plea. Presumably these events would occur when the evidence showing aggravation is slight.
¶11The new sentencing procedures law, Ga. L. 1974, pp. 352, 357, will permit juries to determine whether any mitigating or statutory aggravating circumstances exist "and whether to recommend mercy for the defendant.”
¶12Although a majority of the United States Supreme Court might find the discretionary non-imposition of the death penalty to invalidate the controlled imposition thereof, I do not. In these murky waters, I do not feel that this conclusion constitutes wilful disobedience to the Constitution.
¶13The discretionary non-imposition of a sentence of death is an act of mercy. I cannot find that discretionary mercy is unconstitutional or that it renders invalid the controlled nongranting of it. If the Constitution says otherwise, then the executives’ powers of commutation provided by civilized governments would render any sentence of death invalid. Moreover, if discretionary non-imposition of the death penalty were abolished, then the inability to be merciful in an appropriate case would, in my view, constitute cruel and unusual punishment in *869that case.
¶14I concur in upholding the validity of Ga. L. 1973, p. 159 et seq. (Code Ann. § 27-2534.1 et seq).
¶15Appendix.
¶16Similar Cases Considered by the Court: Lingo v. State, 226 Ga. 496 (175 SE2d 657); Johnson v. State, 226 Ga. 511 (175 SE2d 840); Pass v. State, 227 Ga. 730 (182 SE2d 779); Watson v. State, 229 Ga. 787 (194 SE2d 407); Callahan v. State, 229 Ga. 737 (194 SE2d 431); Scott v. State, 230 Ga. 413 (197 SE2d 338); Kramer v. State, 230 Ga. 855 (199 SE2d 805); Creamer v. State, 232 Ga. 137 (205 SE2d 240); Gregg v. State, 233 Ga. 117 (210 SE2d 659); Morris v. State, 228 Ga. 39 (184 SE2d 82); Stevens v. State, 228 Ga. 621 (187 SE2d 281); Kitchens v. State, 228 Ga. 624 (187 SE2d 268); Atkins v. State, 288 Ga. 578 (187 SE2d 132) Dutton v. State, 228 Ga. 850 (188 SE2d 794); Sims v. State, 229 Ga. 33 (189 SE2d 68); Scott v. State, 230 Ga. 47 (195 SE2d 414); Harwell v. State, 230 Ga. 480 (197 SE2d 708); Allen v. State, 231 Ga. 17 (200 SE2d 106); Conroy v. State, 231 Ga. 472 (202 SE2d 398); Johnson v. State, 231 Ga. 138 (200 SE2d 734); Pierce v. State, 231 Ga. 731 (204 SE2d 159); Sheats v. State, 231 Ga. 362 (201 SE2d 420); Emmett v. State, 232 Ga. 110 (205 SE2d 231).