Opinion
30635.
DECIDED JANUARY 31, 1977.
Murder. Troup Superior Court. Before Judge Jackson.
James E. Weldon, H. J. Thomas, Jr., for appellant.
William F. Lee, District Attorney, Robert H. Sullivan, Assistant District Attorney, Arthur K. Bolton, Attorney General, Harrison Kohler, for appellee.
This case was remanded to this court by the Supreme Court of the United States with the direction that the judgment of this court be reversed, and for further proceedings not inconsistent with the opinion of the Supreme Court of the United States in Davis v. Georgia, ___ U.S. ___ ( 97 S.C. 399, 50 L.Ed.2d 339), which holds that "Unless a venireman is `irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings' (391 U.S. at 522 n. 21) ... he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand." 50 L.Ed.2d 341.
Pursuant to the mandate of the Supreme Court of the United States, the former judgment of this court in the case ( 236 Ga. 804 ( 225 S.E.2d 241)) is vacated, and the judgment of the trial court is affirmed except for that portion thereof which imposes the death penalty.
Direction is given to the trial court as follows: The trial court is directed to grant a new trial as to sentence or, in lieu thereof, vacate the death sentence and sentence the defendant to life in prison.
Judgment affirmed in part, vacated in part, and remanded with direction. All the Justices concur, except Gunter, J., who concurs in the judgment only.