¶1concurring in result.
¶2I concur in the results reached by the Court, however, I do not agree that this is a case of first impression. In addition, there is some question as to whether the question to witness Sandra Gatz was asked in the proper format to raise the issue presented. The question did not ask if the witness had knowledge as to Ms. Gatz’s reputation or character for truthfulness or untruthfulness. In fact, the question was asked in a manner which seemed to request an opinion regarding whether the witness was telling the truth in this trial. If so, the question was not proper and the objection should have been sustained for reasons different than enunciated by the trial judge.
¶3The real issue presented is whether Appellant could have been convicted of the crime set forth in 21 O.S.1981, § 1351. The language of the statute provides:
Every person guilty of using or procuring, encouraging or assisting another to use any force, or violence in entering upon or detaining any lands or other possessions of another except in the cases and manner allowed by law, is guilty of a misdemeanor, (emphasis added)
¶4A literal reading of the statute reveals the legislative drafters by utilizing the comma after “using or procuring” rather than “or” enacted a penal provision which prohibited a person from either getting someone else to enter upon lands or possessions of another with force or violence, or to assist another person in committing the entry. The only reported case interpreting this statute is consistent with this application. See Foust v. Territory, 8 Okl. 541, 58 P. 728 (1899). In Foustthe Court stated “[t]he information is this case specifically averred that the defendant, by force and violence, assisted one John Walburn to forcibly and violently enter upon, into, and tear down a dwelling house then and there in the lawful, peaceful, and actual possession, occupancy, and control of said David B. Ellington”. Id.58 P. at 730. The Court in analyzing the charge went further and determined “[hjence, the defendant was charged with assisting to enter the possession of another”. Id. While the main thrust of the opinion dealt with an interpretation of possessory interest which was protected by the statute, rather than who could be charged, it does provide insight as to persons who are subject to prosecution under its provisions. This interpretation is also consistent with our decision in Rowland v. State, 817 P.2d 263, 266-267 (Okl. Cr.1991). Therefore, it appears the case should either be remanded with instructions to dismiss, or if another offense has been committed, remanded in accordance with the provisions of 22 O.S.1981, § 1067.