On petition for rehearing
BRETT, Judge(denying petition for rehearing) .
On petition for rehearing counsel for defendant reasserts three propositions that he contends we overlooked. In this he is in error. We did not deem it necessary to consider them, for the reason they were not considered by us as controlling in the case. We did not intend to intimate that they were totally without merit, or that counsel had not effectively represented his client. In a close case they could have been decisive, but we are not concerned with what can be termed in our opinion a close case. We shall let that be our major premise, because in his original brief for defendant counsel at the outset thereof states: “We do not raise any question as to the sufficiency of the evidence to sustain the conviction but in order for the court to understand the issues, we shall make a short statement as to the evidence.”
The reason for this assertion is made apparent by the fact that on June 6, 1961 only a month before the alleged rape, a general medical examination incident to a rundown condition of the victim in this case disclosed her to be a virgin, and the examination incident to the alleged rape disclosed her hymen had been broken, that she was in an hysterical condition, nervous, crying, and very upset; and later was found to be pregnant. The record discloses a state of facts and circumstances that point the irretractable finger of guilt in the defendant’s direction, which made his conviction inescapable.
Counsel asserts as one ground for his petition for rehearing' that this is a close case. We cannot find any logical basis for this contention from the standpoint of determination of guilt, even though, as asserted, the jury did twice report it was hopelessly deadlocked, which proved to be untrue. We believe that in face of this record the jury must have been deadlocked on the question of punishment, and not on the question of guilt, for as conceded by the defendant himself, the evidence of guilt is sufficient.
Defendant contends that he was almost without representation of counsel. If this be true, it was only because the preposterous, nonsensical version of the defendant is so completely at odds with the proven facts that any counsel would have been bereft of the use of his attributes as a lawyer. Even the late Clarence Darrow would have been completely disarmed by the idiocy of the defendant’s delineation surrounding the circumstances preceding the rape. Counsel at the trial was compelled by the ethics of the profession to accept defendant’s statement of the facts. Thus defendant’s trial counsel was as disarmed as a one-armed bulldogger plying his skill on a dehorned bull. There was no place for counsel, either at the trial or herein, to get a hold on the situation of defense. This court has known both present defense counsel, and trial counsel Mr. Fred L. Patrick, for a long time as able, reputable and dependable lawyers. We are of the opinion, *607based on observation that the strategy to be employed in the trial of a case varies greatly among the most capable members of the profession. Both trial and appellate counsel have done the best they could under the conditions. Their hands were tied by the defense suggested by the defendant, in our opinion unworthy of belief in face of the prosecutrix conduct, her immediate complaint and her straight forward delineation of the facts surrounding her tragedy. These facts combined with defendant’s attempted assault on the victim’s character, foredoomed his case to failure. He not only despoiled her proven virginity, but then falsely sought to besmirch her in the eyes of the jury. We are aware that appellant counsel would have approached the defense differently, but we cannot say it would have proven more effective than that employed. In fact, we are appalled that the members of the jury fixed the punishment at only the minimum sentence and were persuaded to request leniency in the case. We are of the opinion that the defendant was indeed fortunate to have gotten off with the minimum punishment.
That brings us to another point urged by the defendant, that he was grossly prejudiced by the injection of evidence of another episode in a nearby area on a prior occasion with another girl. The inquiry surrounding this escapade was invited by the defendant in making inquiry as to how long he had been in jail. The facts surrounding this inquiry were readily admitted by the defendant. The inquiry regarding this situation was improper, but even though improper, in our opinion was of proven benefit to the defendant. It was beneficial to the defendant for this reason. The admission made by him of this former escapade is one of the few parts of his testimony that gave any credence whatsoever to his most unbelievable defense. In any event, if error, it falls within the provisions of 22 O.S.1961 § 1068, as harmless error.
We have carefully examined the remarks of the trial court as to the charge that the trial judge’s remarks when the jury reported they were deadlocked 10 to 2, influenced the jury after a manner of coercion. With this contention we cannot agree. We are in complete agreement with the attorney general’s pronouncements as to this matter, as follows:
“The two cases cited by the defendant on this proposition are not in point. The trial court in his discussion with the jury at no time indicated his opinion relative to the guilt or innocence of the defendant. Neither did he express his opinion concerning the evidence as to character or credibility of the witnesses.
“We do not feel that any remarks the court made to the jury during its deliberations constituted prejudicial error to the defendant.”
On the contention that the closing argument of the county attorney, in which he referred to the defendant as a “human animal” was prejudicial, we agree that it was improper, but this court has held that unless such argument, in view of the entire record, affected defendant’s substantial rights, or caused bias or prejudice against him in' the minds of the jury, the conviction will not be reversed for that reason. In face of this record, the jury’s verdict indicates no bias or prejudice. The evidence of guilt was so clear and convincing that if no argument had been made on either side the result would have been the same. Walker v. State, 91 Okl.Cr. 1, 214 P.2d 961.
The jury imposed the minimum penalty when the record, in our opinion, would have supported a much more severe penalty. Hence, we cannot say; that the defendant was prejudiced by reason of the closing argument of the county attorney.
In Workman v. State, 83 Okl.Cr. 245, 175 P.2d 381, this court pronounced the rule which applies to this situation:
“A conviction will not be reversed because of argument of county attorney *608to jury, unless such argument, in view of entire record, affected defendant’s substantial rights, or caused bias or prejudice against him in the minds of the jurors.”
In conclusion, counsel on appeal has ably represented his client but in face of the facts of defendant’s clear and -conclusive guilt, and the demands of justice, he has urged only what we believe to be harmless errors, and has not established a case of denial of due process.
The petition for rehearing is accordingly denied.