¶1dissenting.
¶2I cannot agree with the majority that the trial court’s charge to the jury in the sentencing phase was sufficient under the rule we recently set forth in Spivey v. State, 241 Ga. 477 (1978), and as first formulated in Fleming v. State, 240 Ga. 142, 147 (240 SE2d 37) (1977).
¶3In Flemingthe following statements were given in the charge to the jury during the sentencing phase, "[In] the event your verdict is life imprisonment the *490punishment the Defendant would receive would be imprisonment in the penitentiary for life. And, of course, if you found that there was evidence in extenuation or mitigation then you could fix his punishment at life imprisonment. . . Now, if you do not find that there was one or more aggravating circumstances, which I’ve just read to you, then the form of your verdict would be, 'We, the Jury, fix punishment at life.’ Now whatever your verdict is — or if you found that there was evidence in extenuation or mitigation, you could fix punishment at life.”
¶4We reversed Fleming’s death sentence because of a finding that the trial court failed to make clear to the jury that they could recommend a life sentence even if they found the existence of a statutory aggravating circumstance.
¶5In Spivey v. State, supra, we approved the following charge as making clear to the jury that it could recommend a life sentence even though it found a statutory aggravating circumstance: "It is now your duty to determine, within the limits prescribed by law, the penalty that shall be imposed as punishment for that offense. In reaching this determination you are authorized to consider all of the evidence received by you in open court, and both phases of the trial. You are authorized to consider all facts and circumstances of the case. . . You must first consider and find beyond a reasonable doubt that the ... murder happened] while in the perpetration of another capital felony. . . If you find that to exist, then you shall so indicate in writing, then you will determine whether or not you will impose the death penalty, and your verdict then will be one of two, 'We the jury recommend the death penalty’ or 'We the jury do not recommend the death penalty.’ This is a matter for your determination, ladies and gentlemen.”
¶6The majority has now gone so far as to approve the following charge given during the sentencing phase of Morgan’s trial:
"Now, ladies and gentlemen of the jury, you having found the defendant guilty of murder, and armed robbery, and kidnapping, the Court will impose sentence with reference to the armed robbery and kidnapping, but you *491having found the defendant guilty of the offense of murder, it is now your duty to determine within the limits prescribed by law the penalty that shall be imposed as punishment for that offense. In reaching this determination, you should consider all of the evidence received by you in open court in both phases of the trial. You should consider all of the facts and circumstances of the case, including any mitigating or aggravating circumstances.
"Under the laws of this State, every person guilty of the offense of murder shall be punished by death by electrocution, or by life in the penitentiary. In the event that your verdict is life imprisonment, the punishment the defendant would receive would be imprisonment in the penitentiary for and during the remainder of his natural life. If that be your verdict, you would add, following the verdict already found by you, an additional verdict as follows: We fix his punishment as life imprisonment for the offense of murder, to be served concurrently or consecutively with any other sentence, as you may determine. You may, however, if you see fit and if such be your verdict, fix his punishment as death, which would require a sentence by the Court of death by electrocution. If that be your verdict, you would add following the verdict already found by you an additional verdict as follows: We recommend his punishment as death for the offense of murder.
"I charge you that before you would be authorized to find a verdict fixing a sentence of death by electrocution for the offense of murder, you must find upon the evidence statutory aggravating circumstance or circumstances sufficient to authorize such penalty.”
¶7To my mind, the approval of this charge is to completely erase the standard for review we have set for ourselves in Flemingand Spivey, and to ignore the spirit of the law as formulated by the legislature in Code Ann. § 27-2534.1. In the instant case I find no suggestion given to the jury that they may nevertheless show mercy to the defendant even though they find a statutory aggravating circumstance.
¶8I cannot with clear conscience affirm the death sentence in this case when the charge here is considered in *492the light of Fleming v. State, supra. Therefore, I respectfully dissent to the judgment of affirmance in the punishment phase of the majority opinion.
¶9I am authorized to state that Justice Hill and Justice Marshall join in this dissent.