specially concurring:
I concur in this decision, notwithstanding the fact that the prosecution attempted to downplay the coercive and intimidating capability of codefendant Jim Davis. The record of his trial, judicial notice of which this Court is entitled to rely upon, reflected that he must have been a vicious person.1 When Davis was being prepared for trial, the Deputy Sheriff inquired, “What shall we do with the defendant?” The Sheriff is reported to have replied, “Shackle the son-of-a-bitch.” So he was shackled throughout his trial. At least, that is what the record reflected and as was argued at the motion for new trial at the conclusion of the Davis trial. Consequently, there appears to be little doubt but that Davis strongly impressed or intimidated those around him. They felt he had the capability to carry out his threats. It is not entirely clear in the record of this trial whether or not Davis was shackled during his testimony against these defendants. At least defense counsel Murphy made such a statement during his closing argument, while referring to the testimony of the psychologist Dr. Murphy. He stated, referring to Davis, “They said people like this [Davis] will freak out and do crazy things. That’s why Dr. Murphy said he [Davis] wears shackles when he comes into court to testify.”
*1212Nonetheless, the defense was based upon the defense of duress.
21 O.S.1981, § 152 provides:
All persons are capable of committing crimes, except those belonging to the following classes.
* * * * * *
7. Persons who committed the act, or make the omission charged, while under involuntary subjection to the power of superiors.
21 O.S.1981, § 155, provides:
The involuntary subjection to the power of a superior which exonerates a person charged with a criminal act or omission from punishment therefor, arises from duress.
21 O.S.1981, § 156, provides:
The duress which excuses a person from punishment who has committed a prohibited act or omission must be an actual compulsion by use of force or fear.
Throughout this trial both of these defendants testified that they were fearful of Jim Davis, who committed the violent act by beating the victim to death with a baseball bat. Whether or not their testimony was to be believed was a question of fact for the jury to decide. Without the jury instruction that question was taken away from the jury. In addition to the defendant’s testimony, the record is replete with testimony that Jim Davis was a strong, violent and threatening person. The degree of intelligence of Davis, as asserted by the prosecution, was really irrelevant to his capabilities of force. The prosecution argued that he was not intelligent enough to formulate the plan carried out. Again, whether or not he was intelligent enough to exercise force and fear over the defendants was a question of fact for the jury to determine. The jury was denied the power to determine that fact.
The only unique aspect of this decision lies in the first impression effect of duress as a defense to a felony-murder charge. But after considering the facts of this case and after carefully reviewing the record, I am convinced that duress is an available defense to a felony-murder charge, as depicted by the record of this trial.
Therefore, I concur in this decision.
. Davis v. State, 709 P.2d 207, 210 (Okl.Cr.1985).