Street v. State , 238 Ga. 376 ( 1977 )

238 Ga. 376 (1977) 233 S.E.2d 344

STREET
v.
THE STATE.

30644.

Supreme Court of Georgia.

Decided January 31, 1977. Rehearing Denied February 22, 1977.

E. Kontz Bennett, Jr., Dennis J. Strickland, for appellant.

Dewey Hayes, District Attorney, Dean Strickland, Assistant District Attorney, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, Staff Assistant Attorney General, for appellee.

UNDERCOFLER, Presiding Justice.

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 vacated, and for further consideration in light of Davis v. Georgia, ___ U. S. ___ (2) (97 SC 399, 50 LE2d 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."

Pursuant to the mandate of the Supreme Court of the United States, the former judgment of this court in the case (237 Ga. 307 (227 SE2d 750)) 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:

It appearing from the transcript and record that the voir dire examination cannot be transcribed verbatim, 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.