concurring in part and dissenting in part:
Following a jury trial in the Kay County District Court, defendant was convicted of Murder in the First Degree and sentenced to suffer death. Arguing that the provisions of 21 O.S.1971, § 701.1 ¶ 9, which incorporates 21 O.S.Supp.1978, 843, applies only when a child’s death is caused by a parent or one acting in loco parentis, the Appellant seeks reversal or modification of the charge to Murder in the Second Degree and the sentence to not less than ten (10) years nor more than life imprisonment. Furthermore, it is argued that the search and seizure was illegal and this case should be reversed for that reason alone. Believing that the jury verdict was correct in this case and believing that the search was reasonable within the meaning of the Fourth Amendment, I dissent.
The relevant facts are these. Sally Battles, an eleven-year-old, lived with her parents, sisters and brothers in Perry, Oklahoma. On April 2, 1975, Sally left her home to attend school. She arrived at school dressed in a red coat and hat, white levi’s and blue tennis shoes. At the end of the school day, 3:00 p. m., Sally and Kimberli Kay Griffin boarded the school bus in order to go home. At approximately 3:10 p. m., Kimberli and Sally got off the school bus and walked in the directions of their respective homes. Sally’s home was located beyond a vacant lot near the defendant’s residence, and she was last seen walking across the vacant lot. When Sally had not arrived at her home by 5:30 p. m., her parents contacted the Perry Police Department. A search of the community commenced that day, and continued until the early morning of April 25, 1975, when the Chief of Police received a telephone call from defendant’s wife. She informed him that a strong odor emanating from the garage adjacent from their home had prompted her to ask her husband, the defendant, about the source of the odor. Defendant told her that the odor was from the body of a little girl for whom the police had been searching. Based on this information a search warrant was issued directing the law enforcement officers to the residence of the defendant. The police officers, receiving no response at the residence, entered the house and made a search to determine if any persons were present. Finding no one, the officers proceeded toward the garage. A strong odor was detected by the officers outside the garage, which became stronger as the officers approached the garage. Inside, a large box was found containing various articles and several green plastic trash bags. A child’s body in an advanced state of decomposition, was found inside one of the bags. The body was later identified as Sally Battles. Upon discovering the body, the officers left the residence and proceeded to defendant’s place of employment in order to arrest him. Once defendant was placed in *261custody, the officers returned to his residence to complete the investigation. Most of the victim’s clothes, as well as other items of evidence, were found during the subsequent search of the garage and the house.
The issue of the applicability of 21 O.S. Supp.1973, § 701.1 ¶ 9, to homicides committed by persons not parents nor acting in loco parentis has heretofore been decided by this Court. See Jones v. State, Okl.Cr., 542 P.2d 1316 (1975), and Wishon v. State, Okl. Cr., 550 P.2d 575 (1976). I stand in total agreement with the majority view in those cases, and find no compelling reason to depart from the rationale stated in those cases. I believe that to now adopt a restrictive and limited interpretation of 21 O.S. Supp.1978, § 843, would distort the basic purpose of this statute as it has been applied in cases of child abuse wherein death has not resulted. In, Edmondson v. State, Okl.Cr., 527 P.2d 190 (1974), the defendant, not related to the child or mother, was convicted of violating Section 843. The defendant testified that he beat the child only to arouse the anger of his mother. It is clear from the facts that the defendant had no authority to discipline the child. It would be absurd to use a more restrictive view of this statute when dealing with homicide than when dealing with child abuse not resulting in death. If the purpose of the statute is to protect children from brutality, this purpose would not be best served by limiting its application to cases in which death does not occur, because death is the ultimate brutality. The particular source of the injury to the child is immaterial to this objective. As was stated in the Jones case:
“We are of the opinion that the interpretation now urged upon us would unduly restrict the operation of the language, ‘or other person,’ as contained in [Section 843]. If the Legislature had intended to so restrict that statute, we are persuaded that express terms of limitation would have been employed, and that the statute expressly extends to parents in emphasis of its applicability to those who exceed the use of lawful force upon a child. A statute must be held to mean what it plainly expresses and no room is left for construction and interpretation where the language employed is clear and unambiguous.” This holding was cited with approval in Wishon, supra.
It is argued that Section 843 must be read in conjunction with Section 844, and that doing so, the limitation of Section 843 is apparent. However, Section 843 has not been interpreted in light of Section 844 in cases of child abuse not resulting in death. See Edmondson v. State, supra.
It is also argued that ¶ 9 of 21 O.S.Supp. 1973, § 701.1, absorbs ¶2 in the majority decision in Wishon. However, a careful reading of ¶¶ 2 and 9 1 reveals that while ¶ 2 is aimed at punishing one for committing a sexual assault which results in the death of a child, ¶ 9 is aimed at punishing someone for committing another type of assault resulting in the death of a child. It is not uncommon for the Legislature to treat sexual crime separate from other types of assault.
I next turn to the issue of the search of the garage and house subsequent to the discovery of the body of Sally Battles. I specifically dissent to that portion of the majority opinion. The defendant argues that the items seized from the garage and house subsequent to the finding of the body was invalid as a blanket search. The majority agrees with defendant, and states that the warrant was exhausted upon find*262ing the body. This finding is questionable at best.2
Assuming arguendo that the warrant did not cover other relevant items of evidence, I believe the search can be justified without a warrant. The majority relies on the case of Blackburn v. State, Okl.Cr., 575 P.2d 638 (1978), in order to find no exigent circumstances in this case. However, I believe the holding in Blackburn was based upon an incorrect interpretation of prior case law, particularly Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). A search warrant in Coolidge was found to be invalid by a five-member majority of the United States Supreme Court, because the warrant was not issued by a neutral and detached magistrate. Dicta in that opinion, supported by only four members of the court, was interpreted by the majority of this Court as purporting to limit the plain view exception to the securing of a search warrant to situations in which exigent circumstances existed independent of the plain view. However, I believe this is not the prevailing precedent nor the law in Oklahoma. The most recent controlling statement by the United States Supreme Court concerning the doctrine of plain view is found in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), wherein the majority stated:
“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”
This has long been the law in Oklahoma. See Reynolds v. State, 575 P.2d 628 (1978); Singleton v. State, Okl.Cr., 568 P.2d 284 (1977); State v. Baxter, Okl.Cr., 528 P.2d 347 (1974). Based upon the correct application of the plain view exception, any evidence which was in plain view during the search for the body was admissible. The temporary interruption of the investigation to arrest the defendant, and its completion after the arrest of the defendant, did not render inadmissible such evidence.
The conviction for Murder in the First Degree under § 9 should be affirmed, but modified to life imprisonment in accordance with Riggs v. Branch, Okl.Cr., 554 P.2d 823 (1976).
. 21 O.S.Supp.1973, § 701.1 'T 2 and 9.
Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being is murder in the first degree in the following cases:
“2. When perpetrated by one committing or attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery or when death occurs following the sexual molestation of a child under the age of sixteen (16) years;
“9. When perpetrated against a child while in violation of Section 843, Title 21 of the Oklahoma Statutes; and
. “WHEREFORE, Affiant asks that a search warrant issue according to law, directed to any sheriff, policeman or law enforcement officer in Noble County, Oklahoma, commanding that he search the said person and premises, and take possession of the body of said child and all estimates of items that may possibly have been used by said Carious G. Phelps in his assault upon said child and in the detention of said child.” [Emphasis Added].
“YOU ARE THEREFORE COMMANDED at any time of the day or night to make search of said person and premises, the curtilage thereof and the appurtenant thereunto belonging for the described property, and if found to seize the same and safely keep them, and bring them before me at the Noble County Courthouse in accordance with the subsequent order of the Court, and make return hereof within ten days.” [Emphasis Added].
Although the search warrant contains some ambiguity on its face, read together with the affidavit for search warrant it is clear that the warrant was intended to include more than just the body of the child.