¶1concurring.
¶2I concur in the opinion and judgment of the court and *560in the denial of the motion for rehearing. I wish to add a short explanation in response to the district attorney’s motion for rehearing.
¶3The district attorney argues that the result in this case is contrary to our decision in Orvis v. State, 237 Ga. 6 (226 SE2d 570) (1976), in which we found no double jeopardy bar following two mistrials which resulted from hung juries. In Orvis (237 Ga. at 8) we pointed out that"... the possibility of a retrial after the discharge of the jury for failure to agree also serves to prevent a single juror from unreasonably holding out for acquittal, causing a mistrial, and thereby invoking the bar of double jeopardy single-handedly.”
¶4By motion for rehearing the district attorney points out that the decision in this case will permit one juror single-handedly to prevent the imposition of the death penalty. He urges that the decision in this case is inconsistent with Orvis.
¶5Orvisinvolved the constitutional bar of double jeopardy; this decision involves statutory construction, not double jeopardy. Orvisinvolved a hung jury as to guilt or innocence; this case involves a hung jury as to imposing the death sentence. There is a difference between a juror not being able to single-handedly invoke the bar of double jeopardy and free a person indicted for crime, and a juror (after being qualified by the state as to the death penalty and being accepted as a juror) being able to single-handedly cause a life sentence (rather than the death penalty) to be imposed. The public is not unprotected when a Witherspoon qualified juror holds out for a life sentence.
¶6I am authorized to state that Justice Hall joins in this concurrence.
¶7concurring specially.
¶8I concur in the court’s judgment in this case, but since I do so for different reasons, I deem it appropriate to set forth those reasons.
¶9It is my view that Georgia’s current statutory provisions that permit the imposition of the death penalty in certain specified cases are in violation of the Georgia Constitution. See my separate opinions in Coley v. State, *561231 Ga. 829 (204 SE2d 612) (1974); Street v. State, 237 Ga. 307, and Duhart v. State, 237 Ga. 426.
¶10Additionally, it is my view that the constitutional principle of double jeopardy is applicable to the sentencing phase of a trial under Georgia’s current statutory provisions that permit the imposition or non-imposition of the death penalty by a jury. Under this state’s procedure, one convicted of murder has a statutory right to have the convicting jury determine which of the two sentences provided by law shall be imposed. If the jury declines to impose either sentence, the lesser of the two must be imposed by the court, and the impaneling of a new jury for the determination of which of the two sentences should be imposed violates the double jeopardy provision and the due process provision contained in the Federal Constitution. See my dissenting opinions in Cameron v. Caldwell, 232 Ga. 611 (208 SE2d 441) (1974); Wood v. State, 234 Ga. 758 (218 SE2d 47) (1975); Orvis v. State, 237 Ga. 6 (226 SE2d 570), and Riley v. State, 237 Ga. 124 (226 SE2d 922).