(concurring).
The petition for re-consideration of the opinion promulgated herein on December 4, 1957 and for rehearing and filed in this court on December 18, 1957 was so forceful and the oral argument by John A. Lad-ner, Jr., Esq. (who did not represent defendant in the trial court), so arresting, that we have reconsidered the opinion complained of. The record has been read and re-read, and all briefs re-read and the authorities studied. I have particularly restudied the opinion in light of the petition for re-hearing.
It should be made clear that when the district court of Tulsa County convened on January 30, 1957 there were two charges pending against the defendant, case No. 16910, being a charge of robbery with firearms, and where the maximum penalty was death (21 O.S.1951 § 801); and case No. 16911, kidnapping, where likewise the maximum penalty was death.
The record discloses that a sentence of fifty years was imposed in the first case, and in the second punishment was imposed at death in the electric chair. The appeal is fi'om the latter judgment.
As demonstrated by Judge Brett in his opinion, the confession of the offense charged subjects accused to the same punishment as if he were tried and found guilty by the verdict of a jury. In other words, the extent of the punishment, within the limits of the statute (21 O.S.1951 § 745 subd. A), was within the discretion of the trial judge.
Our duty from the record before us is to determine whether or not the trial judge may have abused his discretion in the matter of the assessment of the extreme penalty.
A single and extreme illustration for clarity would be that if defendant had in his attempt to escape sought to get the kidnapped person to drive him to a local point and he had refused, and defendant at gun point had taken the car and at some convenient place had forced victim out of the car without injury, and had used the car to get, say to the airport or railway *1003station in effecting an escape, the infliction of the death penalty in such a case, I think all reasonable minds would agree, would be an abuse of discretion.
In the within case where the trial court could not become aware of the facts and circumstances in the within case, except what he may, in spite of himself, have heard from news casts and gleaned from headlines in the press, matters he is presumed to have disregarded,1 if he had failed to follow the procedure outlined by 22 O.S. 1951, § 973-975 inclusive, or if such procedure was waived without any stipulation or agreement as to the facts, it would be the idea of this writer that there would be nothing by way of a record to support the sentence imposed. Where there would be a trial and the court had heard evidence and the jury had found an accused guilty and left the assessment of the punishment to the court, under such circumstances, if neither the State nor the defendant requested opportunity to present further evidence in aggravation or mitigation, the court would have a basis in the record to guide him in the imposition of sentence, and there would be a basis for review by this court in case the accused should be dissatisfied with the amount of punishment assessed and appeal, as has been done.
The question here immediately forced, is whether or not the court erred by failure to require the State to produce testimony in support of the purported facts in the within case that the State had not been called on to prove by reason of the confession of the defendant, but which alleged facts were recounted to support the recommendation that the county attorney in conclusion made as to the amount of punishment to be assessed.
The statement of the county attorney prior to sentencing by the court has been detailed in Judge Brett’s opinion. This statement was to cover both the armed robbery charge and the kidnapping charge. The court first considered the armed robbery charge, was advised by both counsel for the defendant and defendant himself that the accused wanted to withdraw the former plea of “not guilty” and enter a plea of “guilty”. The court was careful to question defendant as to whether he had been induced by any promise of leniency to change his plea, and advised defendant that he might receive a death sentence, and defendant said that he understood that. Defendant wanted to waive the two days continuance for sentencing and have the sentence entered immediately. The court asked the county attorney if he had any statement or record he wished to make, and he answered to the effect that he would like for his statement to cover both the cases — armed robbery and kidnapping. The court then announced that before he would pass sentence in case No. 16910, that he would take a plea in case No. 16911. No objection was interposed to this procedure, so the court stated to the defendant that the county attorney and defendant’s counsel had advised the court that in case No. 16911, the kidnapping case where defendant had previously entered a plea of “not guilty”, that he wished to withdraw such plea and enter a plea of “guilty”. The court asked defendant if that was correct, and. he answered, “Yes, sir”, and the following then transpired:
“The Court:. Now, you understand the nature of this charge, do you ?
“Mr. Williams: That’s right.
“The Court: You understand, that it is a charge that is punishable with the extreme penalty of life imprisonment, or death in the electric chair?
“Mr. Williams: Yes, sir.
“The Court: In light of that knowledge and information and understanding, are you entering this plea freely and voluntarily upon your part?
“Mr. Williams: Yes, sir.
“The Court: Has there been any representations made to you by eoun-*1004sel, or by anyone else, as to the sentence which you might expect from the court in this case?
“Mr. Williams: I was told I could expect the maximum.
“The Court: Of death in the electric chair ?
“Mr. Williams: Yes, sir.
“The Court: In light of that representation made to you by your counsel, you wish to withdraw your plea of not guilty and enter a plea of guilty to the charge ?
“Mr. Williams: Yes, sir.
“The Court: Upon your plea of guilty, charged with the crime of kidnapping as set forth in the information in case number 16911, the court finds you guilty of the crime and offense of kidnapping as set forth in the information. Do you have any statements you wish to make, or any legal reason to assign, why the court should not pass and impose sentence upon you, in accordance with your plea of guilty as charged ?
“Mr. Williams: No, sir.
“The Court: As I told you in the other case, you have the right to have your sentence deferred for at least two days, by the court, before formal sentence is entered under your plea. You may waive that, however, and upon your request, the court may impose sentence immediately. What is your request ?
“Mr. Williams: That you impose sentence now.
“The Court: At this time, without further delay?
“Mr. Williams: Yes, sir.
“The Court: Do you have any statement you wish to make, as counsel for this defendant?
“Mr. Woodson: I would rather reserve them if the court please.
“The Court: Very well. Now, Mr. Simms, as representing the State, you say you have some record you wish to make?
“Mr. Simms: If your Honor please, the position of the State will be explained to you by the County Attorney, Mr. Edmondson.
“The Court: Very well.
“Mr. Edmondson: If the court please, I think that your Honor should be fully advised of the facts in this case, before any recommendations should be made at all, as to the punishment, inasmuch as before your Hon- or appears only the informations charging each of these crimes, and the pleas of guilty which the defendant has made. Therefore, we have typed up a brief statement of the facts concerning both of these crimes and the actions of this defendant and the facts and circumstances that would be admissible in court on the trial of either of these cases, and rather than read the entire thing, I will make reference to it and then submit it to your Honor for reading it in detail, if that is the desire of the court.
“The Court: I would prefer that you just read it.
“Mr. Edmondson: All right, sir.
“The Court: In its entirety, then we will have it before the court without further delay.”
The county attorney then proceeded to malee his statements, and when he had finished detailing the facts in the armed robbery case he continued to tell about the kidnapping that followed defendant’s efforts to escape from the scene of the robbery.
Mr. Woodson, counsel for the defendant, then interposed an objection to any statements by the county attorney as to the phases that followed the armed robbery. The court advised counsel that he was considering the statement as covering both cases, and counsel answered, “All right”, but did except to the overruling of his objection.
*1005The county attorney then completed the events happening from the moment of the kidnapping until the ministerial student was ejected from his car into the weeds with hands hound and shot to death. The following then transpired:
“Mr. Woodson: I would like again to interpose an objection here, that the defendant has pleaded guilty to two charges, one the armed robbery and one the kidnapping. The statements being made by the county attorney relate to another charge, that has been passed upon in another jurisdiction.
“The Court: Well, I will consider it as the statement of the county attorney of course and as a continuing thing in the matter, which I think is proper to advise the court of all the facts surrounding the two crimes. Of cowrse, as far as the highjacking case is concerned, it might not at all he competent, but from the kidnapping standpoint, it is, of course, a continuing thing, as long as he had the victim in his charge and under his control, I think all the facts pertinent to the incident are competent to the court and the court should know, so I will overrule your obj ection.
“Mr. Woodson: Exception.”
Counsel objected to the county attorney mentioning other crimes of defendant and the judge suggested to counsel that he would just give him an exception to the whole statement. When the county attorney completed his statement counsel for the defendant asked for and was granted a recess. After the recess, counsel for the defendant asked for a limited number of minutes to make a statement for the defendant, but the court advised counsel to take all the time he wanted.
Much of counsel’s statement was devoted to the thought that the State was seeking retaliation and revenge and he presented a thesis against capital punishment. In the course of his statement, counsel for defendant said:
“In relation to the offense in Muskogee, in which he was charged with the crime of murder and there pleaded guilty, I should like to introduce the closing statements of the judge of that court in passing sentence upon the defendant, after he entered his plea of guilty and introduced the full context of it into the record.”
The State offered no objection, and a transcript of the proceedings before the district court of Muskogee County, where defendant had been charged with the murder that was the culmination of the kidnapping in question, was received in evidence. It was the argument that in that the record from Muskogee County disclosed that the district court there had assessed only a life sentence for the murder that was the culmination of the kidnapping, that the district court of Tulsa County would not be justified in imposing a greater penalty.
The district court of Muskogee County did not hear any evidence nor statements in aggravation or mitigation of the charge of murder where defendant had entered a plea of guilty, so presumably he knew nothing of the facts of the charge. The court in his statement based his assessing the minimum penalty for murder of life imprisonment on his thought that the Criminal Court of Appeals had never affirmed the death penalty where an accused had thrown himself on the mercy of the court and entered a plea of guilty. Judge Brett in his opinion has cited a number of cases where this court has approved sentences where the death penalty was assessed on a plea of guilty. Other cases could have been cited.
The court further reasoned that there might be reversible error in the record if a certain confession were offered and received in evidence; and that defense counsel claimed that some jurors had not left the court room that morning before defendant was handcuffed, and that they may have seen him handcuffed.
Of course whether or not there might be error in the record, after record made, would be for the appellate court to determine and such probable questions should *1006have had no hearing on the determination of the amount of punishment to be imposed for the confessed murder.
The district court of Tulsa County no doubt pondered these things in resolving the contention that the action of the district court of Muskogee County should limit him in the sentence he might impose, and he refused to pass sentence immediately but set the case over for two days to February 1, 1957 at 9:30 a. m., at which time the following transpired:
“By the Court: Mr. Williams, you have heretofore appeared before this court, withdrew your plea of not guilty to the charge of robbery with firearms, as set out in the information, and entered your plea of guilty. You were advised of your rights in the matter. The court heard arguments in reference to the case, statement of facts were presented by the county attorney’s office, the matter of formal sentencing was passed until this time at this hour, after the court found you guilty as charged in the information of the charge upon your plea of guilty. Now an intervention of time has come about since jrou entered your plea, and at that time, the court asked you if you had any statement to make or any legal cause why the court should not pass sentence upon you, and you said you had none. The court in taking up the matter at this time, I will give you an opportunity to make any statement, if you have a statement you wish to make, or show any legal cause why the Court at this time should not pass judgment upon you, in accordance with your plea of guilty.
“Mr. Williams: Well, one thing in the statement of facts, according—
“The Court: You understand this is only with the robbery with firearms charge, I am asking you now.
“Mr. Williams: Yes, sir. What I was going to say, according to the wav Mr. Edmondson read the statement of facts, why I had been convicted before, — oh, the way he said, three times of armed robbery. Now, actually I only had one previous felony conviction.
“The Court: And that was in—
“Mr. Williams: In Indiana.
“The Court: In Indiana, and you served a term for that?
“Mr. Williams: Yes, sir.
“The Court: Weren’t you convicted of a charge in the Federal Court?
“Mr. Williams: Yes sir, but that was a Federal Juvenile — Under the Federal Juvenile Delinquency Act.
“The Court: You did serve a term and did escape from the reformatory, did you not?
“Mr. Williams: No, sir, I don’t know as you could call it as an escape. I was working as a trusty up near Inglewood, and I just walked off.
“The Court: With that correction of the statement of facts, do you have anything else that you wish to state at this time?
“Mr. Williams: No, sir.
“The Court: What is your age ?
“Mr. Williams: Twenty-seven.”
The court next proceeded to pronounce judgment in case No. 16910; and then in case No. 16911 as follows:
“In case number 16911, State versus Edward Leon Williams, here charged with the crime and offense of kidnapping as set forth in the information. ' Upon arraignment upon this charge, appearing before the district court, you entered a plea of not guilty. The case was thereafter set upon the trial jury docket of this court. At a date prior to the setting of this case, you appeared in this division of the district court, and before this court, and expressed your desire to withdraw your plea of not guilty and enter a plea of guilty to the charge of kidnapping as set forth in the information. You were represented by counsel at all times, and advised of all your legal and constitu*1007tional rights. Opportunity was given you and your counsel at that time, which was on Wednesday of this week, to make any statement that you cared to make, showing legal cause why judgment should not be pronounced and your punishment fixed by the court. Statements and arguments were made here in open court and made by the State and by your counsel in reference to the case, and in reference to the punishment. In this case, as in the other case upon which judgment has been passed by the court this morning, the court cognizant of the importance of the matter, and the seriousness of the charges, although you stated to the court that you were voluntarily making your pleas, without any influence being brought to bear upon you, or any promise of any results of the pleas, and stating you were cognizant of the facts, and had been informed that you might expect the extreme penalty in each and both of these cases, and that you were voluntarily making your plea of guilty to the charge. The court at that time passed the matter for sentencing until this morning to give all parties an opportunity for deliberating upon the matter. You come here at this time for formal sentencing under the judgment of the court which was entered on Wednesday, finding you guilty of the crime and offense of kidnapping as set forth in the information.
“Do you have anything further to state at this time, or any legal cause to show to the court, why the court should not fix and assess your punishment upon your plea of guilty to the charge of kidnapping as set forth in the information ?
“Mr. Williams: No, sir.
“The Court: Now, at that time on Wednesday, there was a statement of facts made by the State relative to this case, and the sequence of events and the facts surrounding the sequence of events and the facts surrounding the commission of this crime. Do you have any correction to make in reference to the statement of counsel for the State, in that regard?
“Mr. Williams: No, sir.
“The Court: Those facts were true?
“Mr. Williams: Yes, sir.
“The Court: And you at this time admit that they were true and that you committed the acts as set forth by the State, that is correct, is it?
“Mr. Williams: Yes, sir.
“The Court: All right. Do you have anything further to say on behalf of this defendant?
“Mr. Woodson: Nothing further.”
It is vital to note (1) that counsel for the defendant did not object to the procedure followed by the court in his determination of the sentences to be imposed in the two cases before him where the defendant had entered pleas of guilty; (2) that the only objections interposed by counsel for the defendant to the matters outlined and recounted by the county attorney to the court, and which he stated in effect was an outline of facts that would be admissible in evidence on trial, were objections in the armed robbery charge of a consideration of any of the facts involving the kidnapping case, and then in the kidnapping case to a consideration of what happened in Muskogee County at the termination of the kidnapping. The court ruled in favor of defendant’s objection as to the armed robbery charge, but ruled that he had a right in fixing punishment in the kidnapping case, to consider all the facts from the beginning to the end of the kidnapping, which would include the fact of murder to which the defendant had previously pleaded guilty; (3) after the county attorney completed his statement of the purported facts counsel for the defendant made a lengthy statement and did not take issue with any purported fact, but sought to show that the district court of Muskogee County for the death of the kidnapped victim, had assessed only the minimum penalty of life imprisonment, and wanted the court to consider the reasons assigned by the judge, and there was *1008received in evidence the record made at time of imposition of sentence in Muskogee County, which has been heretofore outlined. After defense counsel’s statement the court adjourned until February 1, 1957 at 9:30 a. m. for pronouncing sentence in the two cases.
On reconvening on February 1, 1957, the court asked defendant if he had any corrections to be made in the statements made by Mr. Edmondson, county attorney, and he claimed that he had previously served only one felony charge; that his other crimes were committed when he was a minor and that he was prosecuted under the Federal Juvenile Delinquency Act. The court accepted the corrections. The court then repeatedly asked the defendant as to the correctness of the statement made by the county attorney as to the purported facts, and defendant in effect stated the county attorney’s statement was a truthful statement of the sequence of events and facts surrounding the commission of the crime. This was equivalent to a stipulation.
Under the circumstances recounted, I agree that it was not necessary for the State to put on evidence in proof. The crime was admitted, and the circumstances surrounding the commission thereof were admitted, so to call witnesses and offer proof would be just taking up the time of the court to prove something where no proof was required.
The crimes of kidnapping, 21 O.S.1951 § 745, and of murder 21 O.S.1951 §§ 701, 707, are separate offenses, with jurisdiction in two separate courts. The action of the district court of Muskogee County, acting first, did not bind the district court of Tulsa County. Where the maximum sentence in each charge was the same, but where the first court had failed to assess such sentence. It was the duty of the district court of Tulsa County to consider the background of the defendant, the probabilities of rehabilitation, and all the facts and circumstances surrounding the kidnapping. The court had to satisfy his own mind and conscience as to the penalty to be assessed, and the court was certainly interested in the question of whether the kidnapping victim was ever liberated, and if so, if he was unharmed. The record showed that he was marched out with hands bound and shot and abandoned, thus' his soul liberated to his Maker, and his body to the earth.
It is concluded that the extent of the punishment within the limits of the statute, was within the discretion of the trial judge, and no abuse of such discretion is apparent. I discover no violation of due process.
The record does not justify further consideration of the question of double jeopardy than has been treated by Judge Brett. Such question was not raised in the trial of the case.
Subject to the thoughts expressed and with all respect to the dissent by Judge NIX, I reiterate my concurrence in the opinion promulgated by Judge BRETT.
. Harrison v. State, 95 Okl.Cr. 123, 240 P.2d 459; Herren v. State, 74 Okl.Cr. 432, 127 P.2d 384; People v. Riley, 376 Ill. 364, 33 N.E.2d 872, 134 A.L.R. 1261.