Redd v. State , 240 Ga. 753 ( 1978 )

Jordan, Justice,

dissenting.

I dissent to Division 7 of the opinion in which the death sentence is set aside and a new trial ordered as to punishment. In my opinion the charge taken as a whole meets the requirement of the law.

On the punishment phase of the trial, the court charged the jury to "consider all of the evidence received by you in open court, in both phases of the trial. You are authorized to consider all the facts and circumstances of the case.” The charge made it clear that the crimes for which the defendant had been found guilty were punishable by death or life, and that it was their duty to determine the penalty within the established limits. The court further correctly charged that "before you would be authorized to find a verdict fixing a sentence of death ..., you must find evidence of statutory aggravating cir1 cumstances . . .”

In my opinion this charge made it quite clear that the jury could consider all of the facts and circumstances of the case, including evidence in mitigation and aggravation, in order to arrive at the proper penalty and that they were authorized to fix the punishment at either death or life. The charge on aggravating circumstances did not mandate a sentence of death if such was found, but merely authorized the death penalty.

I think the jury fully understood its duties and prerogatives under the charge as given. I would affirm.