dissents:
I would reverse and remand for new trial on three grounds: First, that the trial court should have given an instruction on Murder in the Second Degree; second that the prosecutor’s demonstration in closing arguments was improper; and, third that the State improperly withheld exculpatory evidence from the defendant.
This Court has held previously that where there is any evidence tending to prove a lesser and included offense an instruction on that offense must be given. See, Williams v. State, Okl.Cr., 513 P.2d 335 (1973), and Laymon v. State, Okl.Cr., 513 P.2d 883 (1973). The defendant was charged under 21 O.S.Supp.1973, § 701.1, with Murder in the First Degree.1 From evidence in the case, the defendant’s testimony, unexplained footprints, and unexplained cigarette butts bearing saliva not identifiable to any of the victims, or the defendant, the jury might have determined that there was at least a reasonable doubt as to whether the defendant had either killed the victims himself or aided and abetted another person in killing the victims, according to the provisions of Section 701.1, paragraph 8. If so, they might have determined that the defendant was guilty of Murder in the Second Degree, either because it was perpetrated by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or because it was perpetrated without any design to effect death by a person engaged in the commission of any felony other than the felonious acts set out in Section 701.1. The State put on evidence indicating that the defendant had committed the offense of breaking and entering on the day in which the homicides occurred, but breaking and entering is not one of those felonies listed in 21 O.S.Supp. 1973, § 701.1. As we stated in Williams v. State, Okl.Cr., 542 P.2d 544, 582 (1975), later overruled on other grounds in Riggs v. Branch, Okl.Cr., 554 P.2d 823 (1976):2
“. . .To the extent that instructions upon appropriate lesser included offenses are not submitted, the jury would not have the opportunity to consider whether the defendant might only be guilty of a less serious crime, and he would thereby effectively be deprived of his right to a full and complete trial by jury. . . . ”
In the instant case, the jury was faced with the choice of finding the defendant guilty of murder in the first degree or finding him guilty of nothing. ' There was evidence presented that the defendant might have been guilty of a less serious crime than murder in the first degree, and to that extent he was denied a fair trial by jury.
Regarding the demonstration by the prosecuting attorney in the closing argument, the cases cited by the majority in this opinion, while by no means binding this Court to allow such a demonstration, do indicate that in some jurisdictions considerable latitude has been allowed the prosecutor in closing argument. Nevertheless, I think that the demonstration by the prosecutor was extremely prejudicial to the defendant, because the prosecutor made it appear that it would have been a simple task for Mervin *1385Thrasher to have tied his own wrists and then to have stepped over them so that his hands would be tied behind him. The defendant was given no opportunity to discover and point out to the jury that the prosecuting attorney had in fact practiced the demonstration in his motel room. As a result, the jury may well have been misled as to what the demonstration actually had shown.
Finally, I would reverse on the ground that the State suppressed evidence which was exculpatory to the defendant. Prior to the trial, the defendant properly moved to compel disclosure of all evidence favorable to the defendant, including “copies of all memorandums, reports and summaries used by the plaintiff, the State of Oklahoma, or any of its agents, representatives, or assigns, to determine the possibility of the hitchhiker described by the defendant as Jerry Prowess, or to eliminate the possibility of such hitchhiker, described by the defendant, including but not limited to the following:
a) Copies of all form letters testified to at the preliminary hearing by Sid Cookerly sent to other states by the OSBI together with the return information supplied by such states.
b) Copies of all wire messages sent to any police agency or department of motor vehicle registration concerning Jerry Prowess, together with the results of such inquiries.
c) Any and all reports dealing with the investigation or inquiries made concerning the existence or nonexistence of Jerry Prowess, or any other hitchhiker.
The Canons of Professional Responsibility places a high standard on a public prosecutor. DR 7-103(B) states:
“A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.”
The United States Supreme Court has held that it is a denial of due process, and therefore reversible error, for the State to withhold evidence favorable to a defendant after a request by the defendant, where the evidence is material. See, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Demarco v. United States, 415 U.S. 449, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); and, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Here, the evidence had been requested properly by the defendant prior to trial. Furthermore, the evidence was material in that it related to the defense which the defendant was trying to establish. Had the defendant been privy to the information received by the State, he might have found the putative hitchhiker, and he might well have been able to establish his defense, at least as to the charge of Murder in the First Degree. Therefore, the evidence was exculpatory.
On these grounds I respectfully Dissent.
. Title 21 O.S.Supp.1973, § 701.1, states in part: “Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or any other human being, is murder in the first degree in the following cases:
* * * Jfc *
“8. When perpetrated against two or more persons arising out of the same transaction or occurrence or series of events closely related in time and location.”
. In this case, however, we found that no evidence was presented which tended to show the commission of a lesser crime than Murder in the First Degree.