concurring-in-part-and-dissenting-in-part">BRETT, Judge,

concurs in part and dissents in part:

I concur that the conviction in this case should be affirmed, but I dissent to the death penalty under the facts of this particular case. I would modify the sentence to life imprisonment.

The facts of this case reflect that the conviction was premised upon the confession of appellant. In his confession he relates that his co-defendant, Goforth, beat the deceased and set fire to the truck. In short, as the majority opinion relates, each defendant laid the blame on the other for the beating and for setting the truck on fire. The heinous nature of the crime cannot be questioned. The deceased was left to burn to death, even though in an unconscious condition. Admittedly, another jury found Goforth guilty and assessed a life sentence upon him. And, it is established law that an aider and abettor is treated the same as a principal. But, when the conviction is left to such an uncertain state as the instant case, the death sentence causes me some concern.

Referring to the trial court’s answer to the jury’s first question:

Your Honor, we the jury would like to know if the law will permit us, the jury, to recommend life in prison without parole. Thank you.

The trial judge responded:

You may make such a recommendation but it is not binding on the court. The court has no authority to incorporate such recommendation on its judgment and sentence.

Admittedly, trial counsel did not object to the court’s answer to the question. Ordinarily such failure to object constitutes waiver. It would have been better had the judge refused to answer the jury’s question. Or, had the court stopped his answer at the end of the first sentence, no prejudice could have been claimed whether objected to or not.

In a First Degree Murder trial, when the jury is qualified to assess the death penalty, the court should be most cautious and follow the statutory provisions with certainty. Had the provisions of 22 O.S.1971, § 894 been followed precisely, no question would probably exist.

With reference to the second note allegedly sent to the jury, the affidavit of appellate counsel recites, in part, the following:

That as such he [appellate counsel] was taking civil depositions in the District Courtroom No. 1, between 4:00 p.m. and 5:10 p.m., the attorneys and the court reporters were informed that we would have to clear the Courtroom, as the jury in the case of State of Oklahoma vs. Larry Dean Smith, had reached a sentence and would shortly return to the Courtroom.

I immediately left the Courtroom and went to the chamber door of the Honorable Sam C. Fullerton, Judge, where, thereupon, I was informed by the District Judge that he had sent a note in to the *339jury instructing them that if they did not reach a sentence within ten minutes that he would call them back into the Courtroom, discharge them, and then he would pronounce a life sentence. I then looked surprised, and the District Judge stated “That’s what the law provides.”

The alleged second note was never found in the record and does not appear in the record before this Court. But, counsel argued the matter at the hearing on the Motion for New Trial. Judgment and sentence had already been imposed when the motion for new trial was heard.

The hearing concerning the alleged note went as follows:

THE COURT: Now, Mr. Mountford, you have made some allegations in your affidavit or some statements concerning a note?

MR. MOUNTFORD: Yes.

THE COURT: That you were told that I had sent to the jury.

MR. MOUNTFORD: Yes.

THE COURT: Advising them that if they didn’t return with a verdict within 10 minutes that I would bring them back in and discharge them and impose a life sentence?

MR. MOUNTFORD: That’s right, Your Honor.

THE COURT: I would like for the record to reflect that I have reviewed the exhibits in this trial, have opened the exhibits which have been prepared by Mr. Freeman [Court Reporter] and were placed in his custody and were sealed and that there is no such note.

MR. MOUNTFORD: I understand that, Your Honor.

THE COURT: In the file, I would further state that to the best of my knowledge I did not send any such note to the jury. And I would further state that Mr. Haney, the Attorney for the defendant, had made several requests to me to call the jury back in and impose a life sentence in view of the fact that the jury had been in the juryroom for a length of time and I declined to do so, and advised Mr. Haney that I was going to let the jury continue to deliberate for some further time because I did not feel that it would be proper to call them back into the courtroom at that time. And I will state under oath, as a District Judge, that I did not prepare and did not send any such note to the jury.

MR. MOUNTFORD: Could I inquire of the Court then, did you send any note to the jury?

THE COURT: Yes, sir, I did send a note to the jury. And you have made reference, I believe, to that note in your motion for a new trial, which is a note that I did send to the jury, yes. Do you want to go into that further?

MR. MOUNTFORD: No, not at this time. Are you saying then, Your Honor, you only sent one note to the jury? THE COURT: To the best of my knowledge, that is my statement, yes.

MR. MOUNTFORD: Well, I recall, Your Honor, and like I said, I’m an officer of the court, I did come over here and we attempted — Mr. Freeman may recall or may not recall, we attempted to find that. We found one note that had been tore into but we did not — we did not find that note.

MR. DeMIER: If it please the Court, Your Honor, I believe the affidavit of Mr. Mountford does not say that you sent it. He states you said you were going to send it. His affidavit does not set out that you did send it or he saw you send it. MR. MOUNTFORD: No, I think it sets out that he did send it.

THE COURT: Well, let me examine the affidavit. I have it right here before me.

MR. DeMIER: I’m sorry, it does say that you did send it.

MR. MOUNTFORD: See, that’s why the jury come back in that 10 minute period is my understanding.

THE COURT: Well, as I have stated before, I do not recall sending any such note to the jury.

MR. MOUNTFORD: We did attempt to find that note.

*340THE COURT: I have no recollection of having sent any such note to the jury stating that if they did not return within 10 minutes that I was going to bring them back into the courtroom. You didn’t see any such note, did you, Mr. Mountford?

MR. MOUNTFORD: That particular note, I don’t believe I did. I saw the other note. We tried to find the note. THE COURT: Who tried to find it? MR. MOUNTFORD: Well, G.C. [Court Reporter] and I. We could not find it. The one note that we found was tore. THE COURT: And do you know what disposition was made of that note?

MR. MOUNTFORD: Which one is that? THE COURT: The one that was torn? MR. MOUNTFORD: Well, its there, isn’t it?

THE COURT: Well, this note is not torn. It is a complete note that I sent to the jury.

MR. MOUNTFORD: That’s when they inquired as to whether or not they could assess a life without parole. That note, I remember that note.

THE COURT: Yes, sir. That’s the only note that I have any memory of sending. MR. MOUNTFORD: Then its your statement, Your Honor, that you did not send them a note or is it your statement that you don’t recall?

THE COURT: My statement is that I do not recall sending them any such note. MR. MOUNTFORD: If I was to bring some members of the jury, and I have not talked to any members of the jury because its my understanding it’s improper, but we attempted to find that note. It is my recollection that the parties involved, at that time, did remember such a note and we attempted to find it and we could not find it. The notes were left, of course, in the juryroom. That would have been the last note or the last type of instruction that was sent to the juryroom before they returned or to — for the purpose of assessing the punishment. If the Court will grant me leave, then I would make inquiry of the jury. But it is my understanding that there was such a note sent, but that is why they come into the courtroom and told us to clear the courtroom, that the jury would be back in a few minutes.

THE COURT: Because I sent them a note?

MR. MOUNTFORD: Right.

THE COURT: That’s why they would be in?

MR. MOUNTFORD: Yes. Mr. Freeman was there. He may recall or he may not. But we did get out of the courtroom and that’s when we made inquiry if the jury was coming back and they said, no, they had been instructed to return and assess the penalty within 10 minutes, and if they had not done so, you were going to discharge them and assess life — a life penalty.

THE COURT: Well, then—

MR. MOUNTFORD: —And that’s when you turned around and I looked kind of surprised like that and you said, well, that’s what the law provides, and I take it that you indicated that that’s what— MR. DeMIER: —If it please the Court, Your Honor, that’s their allegation. No note was found and those people who said these things have not been brought forth to testify and they were available for the defendant to subpoena if he needed to. I asked that this narrative type interrogation of the Court and conversation with the Court and defendant’s counsel be terminated on the basis that they can’t provide this phantom note that is suppose to have appeared.

MR. MOUNTFORD: Well, it’s a complete surprise to me, is the statement of the Court because—

MR. DeMIER: —If it please the Court, Your Honor, whether or not the Court made that statement is not relevant if the fact no note appeared. This witness, he’s testifying as a witness and attorney for the defendant both, he’s testifying to nothing but blatant hearsay of what some other people told him and how the people on the jury knew about the note. Well, the note is not here and the jurors *341aren’t here and I don’t believe it’s proper for him to testify in this manner, nor have this narrative testimony between the Court and the witness, who is also the defendant’s counsel.

THE COURT: Well, the Court will stand on its statement and I will decline, at this time, to grant leave to subpoena any further witnesses in regard to this matter. MR. DeMIER: I don’t know how the State cross-examines in this type of situation, so I object to it, Your Honor.

MR. MOUNTFORD: Well, as God is my witness, that’s exactly what happened and that’s what the Court said.

THE COURT: Well, I would have to state that I have no recollection of that and that I would have to say, Mr. Mount-ford, that you are incorrect.

MR. MOUNTFORD: I’ll take an exception to that, Your Honor. We would asked leave to bring in members of the jury and continue this motion for new trial.

THE COURT: The request is denied.

Was there a second note sent to the jury? That question is not answered by the record. If such a note was sent, it could be construed as being coercive in forcing a verdict by the jury. I believe the court should have continued the hearing on the motion for new trial and allowed counsel to subpoena, at least, the jury foreman. The only inquiry would have concerned whether or not a second note was sent to the jury. This appears to be pertinent because the trial judge did not remain unequivocal in his answers: If there is any doubt, it should be resolved in appellant’s favor. In Wilson v. State, 534 P.2d 1325 (Okl.Cr.1975), this Court stated in its dictum, while discussing the question of prejudice toward a defendant, “The court could call the bailiff, judge and jurors to testify as to what occurred and effect of such occurrence.” At 1326, 534 P.2d. I believe the court in this case should have allowed counsel to subpoena the jury foreman to clarify the question of the second note. As the record now stands, any prejudice toward appellant remains unresolved.

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