dissenting:
I must dissent to the Court’s decision in this, case in that .it is tragically flawed in two very important aspects. First, the Court completely disregards the historical develop*254ment of the duress defense it enumerates in the opinion, which has not been devalued by statutory enactment and therefore should be the cornerstone of our analysis. Second and more important, the Court disregards the fact the Oklahoma Legislature has limited the defense by statute, choosing instead to ignore our state law by dwelling on the Model Penal Code in a feeble attempt to justify its own fuzzy analysis. I shall address that first.
The opinion gives lip service to the interpretation of “clear and consistent statutory language” in its attempt to justify the result reached. However, in its selective approach to identify that “clear and consistent” language it totally disregards the statutory provisions which control in this case. We need not stray to foreign statutes. The Oklahoma Legislature has limited the application of legal excuse and justification, which the Court recognizes constitute the legal basis for the duress defense, for the crime of homicide by statute. Excuse is limited by 21 O.S.1991, § 731, which reads:
Homicide is excusable in the following cases:
1. When committed by accident and misfortune in doing any lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent.
2. When committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat provided that no undue advantage is taken, nor any dangerous weapon used, and that the killing is not done in a cruel or unusual manner.
Justifiable homicide is controlled by statute, at 21 O.S.1991, § 733. That section reads:
Homicide is also justifiable when committed by any person in either of the following cases:
1. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or,
2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or,
3. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace.
These two statutory provisions codify the legal underpinnings of the theory of the duress defense and determine the limited application of justification or excuse to the crime of homicide.1 The evidence presented, and sought to be presented as revealed by the record on appeal, in this case does not meet the requirements for either justification or excuse as restricted by these statutes.
Three other statutes are also important to the correct analysis, if only to show they do not apply. Section 152(7) of Title 21 reads that “[a]all persons are capable of committing crimes, except ... Persons who committed the act, or make the omission charged, while under involuntary subjection to the power of superiors.” Section 155 of Title 21 states that “[t]he 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.” Section 156 of Title 21 dictates that “[t]he 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.”
The analysis should be as follows: Sections 152(7), 155 & 156 of Title 21 are general *255statutes and must be read as limitations on criminal liability in statutes other than those dealing with homicides. However, as the defense pertains to homicides, the Oklahoma Legislature has adopted two very specific statutes dealing with the duress defense, 1.e. justification and excuse. As a result, the Legislature has limited defenses to homicides on the basis of justification or excuse, i.e. duress, to those requirements and no other. In this case, the evidence does not meet the requirements of either Sections 731 or 733; therefore there is no error for failure to allow the additional evidence.2 This analysis maintains the application of the Common- Law to criminal law and procedure absent legislative action and gives force to the specific provisions of the statutes.
That is what should take place in our analysis. Instead, this Court engages in a fuzzy and ill-focused “weli-it-just-isn’t-fair” analysis to authorize a procedure which directly contradicts State law. This Court is charged with applying applicable rules of law to ensure consistent well-grounded opinions which provide certainty in the application of substantive criminal law to the citizens of this State. The Court’s decision in this case disregards that responsibility and seeks to justify a result that is in direct conflict with state law and historical legal precedent.
This is a tragedy. From a legal standpoint, the adolescent, sociological concept of situation ethics has now crept into our application of the Rule of Law. From a non-legal standpoint, the ruling denigrates and cheapens the value of human life.3
There can be no explanation other than that the Court seeks to base its decision on an interpretation of statutory language in a vacuum, totally divorced from the legal history which fashioned the defense of duress and the rules of statutory construction. It would be nice if we could be like baby ducks and wake up in a new world every day, but legally we cannot. We are bound by precedent and the development of judicial principles. Through an understanding of the legal metamorphosis we are then able to have a vision of the societal purpose developed from the foundation established in the Ten Commandments4; through ancient codes; into the Common Law; and now the statutory enactments which set out the scope of our substantive criminal law. If we disregard the underlying basis for our system of laws then we are engaging in one of the greatest acts of futility of humankind, perceiving mere knowledge as wisdom.
Since the Court’s action is predicated on the flawed interpretation of the scope and application of the defense of duress, limited comment is necessary on other propositions of error. Turning to the issue of peremptory challenges, 22 O.S.1991, § 655 provides in pertinent part:
*256In all criminal cases the prosecution and the defendant are each entitled to the following peremptory challenges: Provided, that if two or more defendants are tried jointly they shall join in their challenges; provided, that when two or more defendants have inconsistent defenses they shall be granted separate challenges for each defendant as hereinafter set forth.
First. In prosecutions for first degree murder, nine jurors each.
In Neill v. State, 827 P.2d 884, 891 (Okl.Cr.1992), we discussed inconsistent defenses and stated:
In analyzing the law of inconsistent defenses, we have found that in some cases, the “inconsistency” goes to the level of culpability while in other cases the “inconsistency” goes to guilt or innocence. Where the issue is restricted to the level of each co-defendant’s culpability, co-defendants may be required to share peremptory challenges, (cites omitted). However, where the “inconsistency” in the defenses relates directly to guilt or innocence, co-defendants must be granted separate challenges. (cite omitted).
See also Plantz v. State, 876 P.2d 268, 276 (Okl.Cr.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995). Here, any inconsistency in the defenses went only to the level of culpability, therefore Appellant and her co-defendant should have shared the nine peremptory challenges. The result of the trial court’s ruling granting each defendant six peremptories will be discussed later. First, I will explain why each defendant was not entitled to 9 separate peremptories.
As set out above, the defense of duress is not applicable to first degree malice aforethought murder. See also, Tully v. State, 730 P.2d 1206, 1208-1210 (Okl.Cr.1986). Therefore, under the law, Appellant was not entitled to the defense of duress for the intentional killing of her husband. (Further, under the evidence revealed in the record before this Court she was not entitled to the defense of duress as the uneontradicted evidence showed that prior to Woodward consenting to help her, Appellant had solicited others to help her kill her husband.)5 Any attempt by Appellant to rely upon the defense of duress merely goes to her level of culpability.
Likewise, co-defendant Woodward’s reb-anee on the defense of voluntary intoxication went only to his level of culpability. Title 21 O.S.1991, § 704 provides that “homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger of voluntary intoxication.”6 Therefore, voluntary intoxication cannot be used as a defense or excuse to the crime of intentional murder and co-defendant Woodward’s reliance on this defense goes only to his culpability. Due to the fact that neither the duress defense nor the voluntary intoxication defense could have been relied upon to absolve either defendant of guilt, the evidence could only have been relied upon to lessen the level of culpability. Thus under Neill, the 2 defendants should have shared nine peremptory challenges. In addition, severance was not required.
The trial court’s error in not requiring Appellant and co-defendant Woodward to share the nine peremptory challenges is subject to a harmless error analysis. 20 O.S. 1991, § 3001.1. As Appellant and her co-defendant each received six peremptories, more than they would have had if they had shared the challenges, the trial court’s ruling did not result in “a miscarriage of justice, or constitute[s] a substantial violation of a constitutional or statutory right.” Id. See also Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (federal guaran*257tee of due process requires only that a defendant receive all the peremptory challenges allowed by state law) and Fox v. State, 779 P.2d 562 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990) (the state constitution likewise is satisfied when a defendant receives the peremptory challenges allowable pursuant to state law).
I also disagree with the opinion’s finding that juror misconduct was proven by clear and convincing evidence. Appellant has offered no support for her claim that the juror in question was not paying attention. Prior to first stage closing argument, counsel for co-defendant Woodward moved to excuse the juror because she had “slept throughout this whole trial.” However, the record presented to this Court on appeal is void of any attempts by Appellant or co-defendant Woodward to bring this alleged conduct to the trial judge’s attention while the conduct was occurring. Further, there was no finding that the juror had actually been sleeping or that she missed a substantial portion of the trial.
The trial judge who sits in the courtroom and sees the jurors first-hand is in a much better position to determine the level of a juror’s attentiveness. As Appellant has not supported her claim of juror misconduct by clear and convincing evidence, I find no error in the trial court’s refusal to replace the juror.
I dissent to the Court’s decision to reverse and remand this case for a new trial. Any error was harmless beyond a reasonable doubt and the judgment and sentence should be affirmed.
. These statutes legally eviscerate the Court’s vision that justification is not encompassed within our Legislature's application of the concept of duress to the crime of homicide. In addition, this analysis points out the Court has disregarded the basic rule of statutory construction that a special statute that sets forth a specific requirement controls over a general statute. See Lozoya v. State, 932 P.2d 22, 28-29 (Okl.Cr.1996); Crawford v. State, 881 P.2d 88, 92 (Okl.Cr.1994); Stiles v. State, 829 P.2d 984, 989 (Okl.Cr.1992); Bowman v. State, 789 P.2d 631, 632 (Okl.Cr.1990); State v. Woodward, 737 P.2d 569, 570-571 (Okl.Cr.1987).
. It should be noted the jury in this case was instructed on the defense of duress utilizing OUJI-CR 716, 717-718 and 719 (O.R.291) and instructed it was the State's burden to prove the defendant was not acting under duress. Therefore, the only issue is the limitation by the trial court of the evidence allowed to be presented to support the defense. Regardless of the standard of review applied in this case, if the Court’s ruling was error, it would be harmless.
. Although it did not figure into the legal analysis contained herein, it is this writer’s personal opinion that the law has been formulated over the ages to provide the plumb-line of moral guidance to humanity, not to be utilized to denigrate the values to which society should aspire. Whether it is from the language of the scriptures (“Greater love has no man than this, that a man lay down his life for his friends.” John 15:13(RSV)), or, as the opinion quotes the common law,."he ought rather to die himself than escape by the murder of an innocent,” the value of human life must always be respected. For that reason we limit the application of the ultimate punishment to those instances where an individual defies that basic tenet of civilization. The distinction we see today is the scriptures and common law were both based on the foundation of moral absolutes required to ensure the survival of an ordered civilization, while our present society seems to cultivate the learned helplessness engendered through lack of individual accountability and responsibility. It is only from this bed of shifting sand that one can possibly come to a conclusion it is justifiable for an individual to have the legal authority to determine an innocent life can be snuffed out merely to protect one’s own skin. The civic virtue, much less, the perspective of the value of human life, once deemed imperative to the survival of our Republic has now been diluted to the point it does not appear to be even microscopically present in our societal thought process.
.Exodus 20: 1-17.
. In August 1993, Appellant paid a man $500.00 to murder her husband but the man took her money and left without killing the victim. Appellant then recruited Charles Holycross to murder the victim. She called Holycross several times and offered him $1,000.00 to kill the victim but Holycross refused to commit the murder.
. 22 O.S.1991, § 153 also provides that voluntary intoxication is not a defense to criminal culpabilily. However, we recognize an exception to this rule where the accused was so intoxicated that his/her mental abilities were totally overcome and it therefore became impossible for him/her to form criminal intent. Crawford v. State, 840 P.2d 627, 638 (Okl.Cr.1992). Therefore, while voluntary intoxication may go to the specific intent so as to reduce a killing to another level of homicide, that is not the issue here.