#### STATE of Louisiana v. Johnson WASHINGTON, Jr.

No. 55806.

Supreme Court of Louisiana.

Nov. 30, 1976.

Rehearing Denied Sept. 2, 1977.

Jacques F. Bezou, New Orleans, Garon, Brener & McNeely, New Orleans, for defendant-appellant; David E. Kendall, New York City, NAACP Legal Defense and Educational Fund, Inc., of counsel.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Walter L. Smith, Jr., Asst. Atty. Gen., Norman J. Pitre, Asst. Dist. Atty., for plaintiff-appellee.

PER CURIAM:

Defendant Johnson Washington Jr. was charged by grand jury indictment with first degree murder in violation of La.R.S. 14:30. After trial by jury, he was found guilty and was sentenced to death. This Court affirmed his conviction and sentence on appeal, rejecting defendant’s contention that the death penalty provision of La.R.S. 14:30 was unconstitutional. 321 So.2d 763 (La. 1975). The Supreme Court of the United States granted defendant’s petition for cer-tiorari, vacated our judgment with respect to the death penalty, and remanded the case to this Court, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1213 (1976), with the following mandate:

> ON CONSIDERATION WHEREOF, it was ordered and adjudged on July 6, 1976, by this Court that the imposition and carrying out of the death penalty in this case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. *Roberts*v. *Louisiana,*428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The judgment of the Supreme Court of Louisiana in this cause is therefore vacated insofar as it leaves undisturbed the death penalty imposed, and that this cause be remanded to the Supreme Court of the State of Louisiana for further proceedings.

> NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

In accordance with this mandate, the death penalty imposed upon defendant must be annulled and set aside. For the *1252reasons set forth in *State v. Jenkins,*340 So.2d 157 (La.1976), we have concluded that the appropriate sentence to be imposed upon a valid conviction for first degree murder is the most severe constitutional penalty established by the legislature for criminal homicide at the time the offense was committed. *See*La.R.S. 14:29 et seq. In the instant case, the offense was committed on July 4, 1973, at which time the most severe valid penalty for homicide was imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. *See*La.R.S. 14:30.1, as added by Acts 1973, No. Ill, § 1.

Accordingly, for the reasons assigned in our original opinion, defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court, with instructions to resentence defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.