¶1dissenting.
¶2An examination of the entire charge in the sentencing phase of the trial leads me to the conclusion that it is not subject to this court’s criticism as set forth in Fleming v. State, 240 Ga. 142 (240 SE2d 37) (1977) and Hawes v. State, 240 Ga. 327 (240 SE2d 833) (1977).
¶3Let me set forth those portions of the charge which I consider pertinent to this problem. At the very beginning of the sentencing phase the trial court charged:
"Although you have already heard the evidentiary matter in the case and will be able to retain and consider the evidence that you heard, counsel are permitted under the rules of the procedure to offer additional evidence. This evidence can be offered by the State, which would go to any aggravating circumstances which upon the requirements of law they would proceed to give notice and to offer any additional evidence they may have and, in turn, the defense can also offer additional evidence and present such evidence as they deem appropriate as to mitigation and to other matters in the sentencing phase.”
¶4The district attorney then stated that he would rely on the notice of aggravating circumstances previously filed and that the state would have "no other evidence to introduce other than that which has come out in the trial earlier.” The appellant then introduced and examined four character witnesses.
¶5The trial court then proceeded to charge the jury as follows:
"The Legislature of the State of Georgia has provided for the offense of murder that there are two sentences which you will have to consider. One is death by electrocution, for the capital felony provision, and the other one will be life imprisonment.
"And I charge you, ladies and gentlemen of this jury, that before you would be authorized to find a verdict fixing a sentence of death by electrocution, you must find evidence of statutory aggravating circumstances, as I will define to you later in the charge, sufficient to authorize the supreme penalty of law. I charge you that a finding of statutory aggravating circumstances shall only be based *17upon evidence convincing your minds beyond a reasonable doubt as to the existence of one or more of the following factual conditions in connection with the defendant’s perpetration of the act for which you have found him guilty.”
¶6The court continued its charge as follows:
"If you fix his punishment at death, you must also designate in writing the aggravating circumstance or circumstances which you find beyond a reasonable doubt.”
¶7And further along in the charge the trial court stated:
"Now, of course, ladies and gentlemen, the other verdict is that of life imprisonment. That is the other verdict which you will have out with you. If you do not find the defendant subject to the laws that I have given you as to the supreme penalty, then the alternate form of your verdict will be life imprisonment and we will also furnish you with a form for that----You have the indictment and the evidence which was adduced upon the trial; you have those matters already with you. And also you must take into consideration that the defendant in this case has submitted additional evidence and you will take that into consideration also. Then, ladies and gentlemen, you will determine the penalty or punishment which shall be imposed in this case.” (Emphasis supplied.)
¶8In my opinion this charge, viewed in its totality, made it amply clear to this jury that they were not required to bring in the death penalty and that they had an alternative to such a verdict even though an aggravating circumstance was found. It is also abundantly clear to me that the charge included an admonition to the jury that it must consider the mitigating circumstances based on the evidence brought out upon the trial phase and upon the additional evidence submitted to them in mitigation during the sentencing phase.
¶9I would affirm the conviction and the sentence.
¶10I am authorized to state that Chief Justice Nichols and Justice Bowles join in this dissent.