(special concurrence).
While I agree that the evidence in this case is sufficient to sustain the verdict of the jury, I do not agree that the special prosecutor should have been permitted to conduct this trial. Likewise I do not agree with the majority decision wherein it states, “We need only observe that the record reflects that the conduct of the Special Prosecutor was well within the rules of conduct, and non-prejudicial toward the defendant.” As I view the record before this Court, the Special Prosecutor took charge of the prosecution and conducted it himself. With the exception of four witnesses whose testimony was short, the Special Prosecutor conducted the entire trial, including both closing arguments.
As I view the present statutes, there is no authority for the participation of a special prosecutor. When the Office of District Attorney was created by House Bill 801, (1965) 30th Oklahoma Legislature, no provisions were made for anyone but the District Attorney and his Assistants to prosecute crimes in his district. Section 9, of the Act, provided for the temporary appointment of a district attorney, by the District Judge when there is no district attorney or assistant district attorney for the County. However, in 1967, the Legislature provided that the District Attorney may request the assistance of District Attorneys and their assistants in other counties. 19 O.S. (1967) Supp. § 215.4. In 1967, the Legislature also amended Section 9, of H. B. 801, supra and provided in § 215.9, “In the event that the District Attorney and all of his assistants are for any reason disqualified to act in a particular matter, the Attorney General of Oklahoma shall appoint some attorney of the district to act in such matter . . . ” This provision removed the District Judge from the position of appointment. Consequently, I can find no authority for the Special Prosecutor’s activity in this case; and I interpret this provision to mean that the District Judge is deprived of the power to permit the participation of a Special Prosecutor.
Speaking through the Honorable Dick Jones, this Court stated in Neill v. State, 89 Okl.Cr. 272, 207 P.2d 344 (1949):
“We know of no rule of law whereby a public officer may delegate power or authority involving official discretion or responsibility, except as prescribed by the statute. The law has very carefully guarded the administration of public justice from any interested or unauthorized intermeddling. The [district attorney] is a very responsible officer, selected by the people and vested with a wide personal discretion, intrusted to him as a minister of justice. There are many reasons why a power of this kind should be confined to the prosecuting officer. He is expected to be impartial in abstaining from prosecuting, as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned.”
“The public have a right to insist upon the performance of public duties that are strictly official in the prosecution of *282crime by [district attorneys] and assistants duly appointed and qualified as provided by law, and we think it would be directly contrary to public policy to allow or permit any general delegation of the [district attorney’s] power or responsibility in this respect.”
Under the 1949 statutes, Special Prosecutors were permitted to assist the prosecutor in the trial. But even then the Special Prosecutor was not permitted to take charge of the trial, as was done in the instant case. The majority decision cites Hobson v. State, supra, which was also authored by the Honorable Dick Jones, but that decision specifically recites, “We can find nothing in the record to show that the county attorney lost control of the case . .” On the other hand, when one reads the record in the instant case it appears that the Assistant District Attorney was participating at the pleasure and will of the Special Prosecutor. I believe such procedures — under the existing statutes— should not be permitted.
Therefore, while I agree that the evidence of this case is sufficient to sustain this conviction, because of the abuse of prosecutorial authority I would modify the sentence in this decision to ten (10) years, and modified I would affirm the conviction.