BRETT, Presiding Judge.
Plaintiff in error, Edward Leon Williams, defendant below, was charged by information in the District Court of Tulsa County, Oklahoma, with the admitted crime of kidnapping, committed on December 17, 1956, against one Tommy Robert Cooke in the aforesaid county and state, in violation of 21 O.S.1951 § 745. Defendant first entered a plea of not guilty, but several days subsequent thereto withdrew the same and entered a plea of guilty before Honorable Leslie W. Webb, Judge of the District Court. On the plea of guilty, the defendant was sentenced to death in the electric chair. Judgment and sentence were entered accordingly, from which this appeal has been perfected.
On this appeal, the defendant seeks relief from said penalty of death upon two propositions hereinafter set forth. First, he contends the trial court erred in permitting the county attorney to make a statement in substance detailing the defendant’s crime of kidnapping, another offense immediately preceding the kidnapping (supplying the motive therefor), and other crimes following the kidnapping. The facts, briefly, in regard to .the crime herein alleged are that the victim, Tommy Robert Cooke, a theological student, stopped his car at about 5:30 p. m., Sunday, June 17, 1956, at the stop light at the intersection of Third and Cheyenne Streets in Tulsa, Oklahoma. The defendant, who was standing nearby, approached and at pistol point forced his way into the Cooke automobile, directing Cooke to drive south on Highway 64. Thus, the crime of kidnapping was completed by these acts. Norris v. State, 68 Okl.Cr. 172, 96 P.2d 540. Thence, he compelled Cooke to drive to Bixby, Oklahoma, where under the persuasion of his pistol, the defendant took from Cooke’s billfold $5, with which he paid for gas, and forced Cooke to continue on South on Highway 64. At a point approximately three miles east and four miles north of Taft, Oklahoma, in Muskogee County, a point with which he was apparently familiar, the defendant marched Cooke into the weeds off a dead-end road, with Cooke pleading not to be tied up, according to Williams’ confession, and shot Cooke on the right side of the head behind the right ear, affecting his instantaneous death. The life of Cooke was apparently taken with the cold blooded intent of eliminating the possibility of positive identification. This might have resulted had it not been for his subsequent depredations. The accused then stole the decedent’s automobile and sought to effect an escape from his crime.
It appears the night preceding the kidnapping, about 1:00 a. m., the defendant drove into a Hudson Service Station, bought gas, asked how much he owed the attendant, reached into the automobile he was driving, got a .38 caliber pistol, told the attendant he wanted his money, thus obtained $30 in currency, forced him inside the station for more money, and required him to go into the rest room with the admonition, “You come out and I’ll blow your head off.” Later, in flight from pursuing policemen, he wrecked his automobile, but avoided apprehension by crawling through two-hundred feet of culvert, hiding in a wooded area until the evening of the kid[993]*993napping when he came out and consummated the abduction of Cooke.
It is apparent the motive behind the kidnapping was to avoid apprehension by the officers for the robbery with firearms committed the night before. After kidnapping and killing Cooke, and stealing Cooke’s automobile, the defendant drove to Tali-hina, Oklahoma, where he committed an armed robbery of his former employer of $1,000. Later, he abandoned the Cooke automobile and returned to Talihina where he burglarized a grocery store for food with which to sustain himself in the mountains. Thereafter he was arrested on a bus by a member of the Highway Patrol at Poteau, Oklahoma, and a short time later confessed the murder of Tommy Cooke, taking the officers to the point in Le Flore County, Oklahoma, where he had disposed of the gun, which the officers recovered and which ballistics experts established was the gun that killed Cooke. All the foregoing occurrences the County Attorney detailed in his statement relative to the motive for the kidnapping. In addition thereto, his F. B. I. record detailing prior convictions for automobile theft, robbery with firearms, and other crimes was submitted to the trial court. It is thus apparent that this unfortunate defendant, though only twenty seven years of age, had long been a devotee to crime.
The court proceeded with great care and caution in this case relative to the defendant’s constitutional and statutory rights, even delaying the pronouncement of judgment and sentence for forty eight hours after the defendant’s plea of guilty, even though the defendant had waived his right thereto and stood ready for the pronouncement of judgment and sentence. Notwithstanding these facts, the defendant complains the trial court erred in allowing the County Attorney to orally state these foregoing facts by way of aggravation. The defendant contends that this procedure was in violation of the provisions of 22 O.S. 1951 §§ 973-975 inclusive, reading as follows:
Ҥ 973. After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct.
Ҥ 974, The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county out of court, at a specified time and place, upon such notice to the adverse party as the court may direct.
“§ 975. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court or member thereof in aggravation or mitigation of the punishment except as provided in the last two sections.”
In this connection, it has been held that on a plea of guilty in a capital case, it is for the trial court to determine whether the defendant should be punished by life imprisonment or by imposition of the death penalty. In re Watkins, 21 Okl.Cr. 95, 205 P. 191; In re Opinion of the Judges, 18 Okl.Cr. 598, 197 P. 546; In re Opinion of the Judges, 6 Okl.Cr. 18, 115 P. 1028. Nevertheless, on a plea of guilty, the provisions of the foregoing statute may be invoked when request is made for the taking of evidence on the question of aggravation or mitigation of punishment. This request may be made by the state or the defendant.
It has been held not to be improper to employ this method of procedure in the absence of a request therefor. In re Watkins, supra; State v. Arnold, 39 Idaho 589, 229 P. 748. But, two things are clear under the provisions of § 973. First, pursuing this method of procedure is a matter of the [994]*994trial court’s sound discretion. Second, its use is further contingent upon the request of either the state or the defendant.
We have never been called upon to directly pass upon this question. Under the Criminal Code of Illinois, S.H.A. ch. 38, § 732, it is provided:
“In all cases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation or mitigation of the offense.”
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BRETT, Presiding Judge.
Plaintiff in error, Edward Leon Williams, defendant below, was charged by information in the District Court of Tulsa County, Oklahoma, with the admitted crime of kidnapping, committed on December 17, 1956, against one Tommy Robert Cooke in the aforesaid county and state, in violation of 21 O.S.1951 § 745. Defendant first entered a plea of not guilty, but several days subsequent thereto withdrew the same and entered a plea of guilty before Honorable Leslie W. Webb, Judge of the District Court. On the plea of guilty, the defendant was sentenced to death in the electric chair. Judgment and sentence were entered accordingly, from which this appeal has been perfected.
On this appeal, the defendant seeks relief from said penalty of death upon two propositions hereinafter set forth. First, he contends the trial court erred in permitting the county attorney to make a statement in substance detailing the defendant’s crime of kidnapping, another offense immediately preceding the kidnapping (supplying the motive therefor), and other crimes following the kidnapping. The facts, briefly, in regard to .the crime herein alleged are that the victim, Tommy Robert Cooke, a theological student, stopped his car at about 5:30 p. m., Sunday, June 17, 1956, at the stop light at the intersection of Third and Cheyenne Streets in Tulsa, Oklahoma. The defendant, who was standing nearby, approached and at pistol point forced his way into the Cooke automobile, directing Cooke to drive south on Highway 64. Thus, the crime of kidnapping was completed by these acts. Norris v. State, 68 Okl.Cr. 172, 96 P.2d 540. Thence, he compelled Cooke to drive to Bixby, Oklahoma, where under the persuasion of his pistol, the defendant took from Cooke’s billfold $5, with which he paid for gas, and forced Cooke to continue on South on Highway 64. At a point approximately three miles east and four miles north of Taft, Oklahoma, in Muskogee County, a point with which he was apparently familiar, the defendant marched Cooke into the weeds off a dead-end road, with Cooke pleading not to be tied up, according to Williams’ confession, and shot Cooke on the right side of the head behind the right ear, affecting his instantaneous death. The life of Cooke was apparently taken with the cold blooded intent of eliminating the possibility of positive identification. This might have resulted had it not been for his subsequent depredations. The accused then stole the decedent’s automobile and sought to effect an escape from his crime.
It appears the night preceding the kidnapping, about 1:00 a. m., the defendant drove into a Hudson Service Station, bought gas, asked how much he owed the attendant, reached into the automobile he was driving, got a .38 caliber pistol, told the attendant he wanted his money, thus obtained $30 in currency, forced him inside the station for more money, and required him to go into the rest room with the admonition, “You come out and I’ll blow your head off.” Later, in flight from pursuing policemen, he wrecked his automobile, but avoided apprehension by crawling through two-hundred feet of culvert, hiding in a wooded area until the evening of the kid[993]*993napping when he came out and consummated the abduction of Cooke.
It is apparent the motive behind the kidnapping was to avoid apprehension by the officers for the robbery with firearms committed the night before. After kidnapping and killing Cooke, and stealing Cooke’s automobile, the defendant drove to Tali-hina, Oklahoma, where he committed an armed robbery of his former employer of $1,000. Later, he abandoned the Cooke automobile and returned to Talihina where he burglarized a grocery store for food with which to sustain himself in the mountains. Thereafter he was arrested on a bus by a member of the Highway Patrol at Poteau, Oklahoma, and a short time later confessed the murder of Tommy Cooke, taking the officers to the point in Le Flore County, Oklahoma, where he had disposed of the gun, which the officers recovered and which ballistics experts established was the gun that killed Cooke. All the foregoing occurrences the County Attorney detailed in his statement relative to the motive for the kidnapping. In addition thereto, his F. B. I. record detailing prior convictions for automobile theft, robbery with firearms, and other crimes was submitted to the trial court. It is thus apparent that this unfortunate defendant, though only twenty seven years of age, had long been a devotee to crime.
The court proceeded with great care and caution in this case relative to the defendant’s constitutional and statutory rights, even delaying the pronouncement of judgment and sentence for forty eight hours after the defendant’s plea of guilty, even though the defendant had waived his right thereto and stood ready for the pronouncement of judgment and sentence. Notwithstanding these facts, the defendant complains the trial court erred in allowing the County Attorney to orally state these foregoing facts by way of aggravation. The defendant contends that this procedure was in violation of the provisions of 22 O.S. 1951 §§ 973-975 inclusive, reading as follows:
Ҥ 973. After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct.
Ҥ 974, The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county out of court, at a specified time and place, upon such notice to the adverse party as the court may direct.
“§ 975. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court or member thereof in aggravation or mitigation of the punishment except as provided in the last two sections.”
In this connection, it has been held that on a plea of guilty in a capital case, it is for the trial court to determine whether the defendant should be punished by life imprisonment or by imposition of the death penalty. In re Watkins, 21 Okl.Cr. 95, 205 P. 191; In re Opinion of the Judges, 18 Okl.Cr. 598, 197 P. 546; In re Opinion of the Judges, 6 Okl.Cr. 18, 115 P. 1028. Nevertheless, on a plea of guilty, the provisions of the foregoing statute may be invoked when request is made for the taking of evidence on the question of aggravation or mitigation of punishment. This request may be made by the state or the defendant.
It has been held not to be improper to employ this method of procedure in the absence of a request therefor. In re Watkins, supra; State v. Arnold, 39 Idaho 589, 229 P. 748. But, two things are clear under the provisions of § 973. First, pursuing this method of procedure is a matter of the [994]*994trial court’s sound discretion. Second, its use is further contingent upon the request of either the state or the defendant.
We have never been called upon to directly pass upon this question. Under the Criminal Code of Illinois, S.H.A. ch. 38, § 732, it is provided:
“In all cases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation or mitigation of the offense.”
The wording of this statute would appear to be more mandatory than that of the Oklahoma statute in question. Even so, in Illinois it has been held that the foregoing provisions of said statute are waived by the failure of the parties to the action to invoke its use by request. People v. Crooks, 326 Ill. 266, 157 N.E. 218; People v. Throop, 359 Ill. 354, 194 N.E. 553; People v. Clark, 387 Ill. 468, 56 N.E.2d 785; People v. Evans, 379 Ill. 430, 74 N.E.2d 708; People v. Thompson, 398 Ill. 114, 75 N.E.2d 345, certiorari denied 332 U.S. 856, 68 S.Ct. 384, 92 L.Ed. 425, and 337 U.S. 943, 69 S.Ct. 1497, 93 L.Ed. 1747; People v. Carter, 398 Ill. 336, 75 N.E.2d 861, certiorari denied 333 U.S. 882, 68 S.Ct. 908, 92 L.Ed. 1157.
It is contended that under the provisions of § 975 it is the mandatory duty of the court to hear witnesses. But, in construing §§ 974 and 975 in light of the provisions of § 973, we are of the opinion that both the provisions of § 974 and § 975 are contingent upon the request for evidence under the provisions of § 973, or it is within the trial court’s discretion to pursue some other reasonable method. When the parties fail to make a request for the privilege thereof, the same is waived and some other method of supplying the court with the necessary information for the pronouncement of judgment and sentence may be substituted instead. 24 C.J.S. Criminal Law § 1983, note 33, p. 1206; People v. Pennington, 267 Ill. 45, 107 N.E. 871, 872; People v. Withey, 387 Ill. 418, 56 N.E.2d 784, certiorari denied 323 U.S. 800, 65 S.Ct. 552, 89 L.Ed. 638; People v. Stack, 391 Ill. 15, 62 N.E.2d 807, certiorari denied 326 U.S. 792, 66 S.Ct. 477, 90 L.Ed. 481; People v. Farris, 392 Ill. 267, 64 N.E.2d 456, certiorari denied 327 U.S. 811, 66 S.Ct. 973, 90 L.Ed. 1036; People v. Curth, 398 Ill. 322, 75 N.E.2d 755; People v. Fleming, 406 Ill. 389, 94 N.E.2d 358; People v. Hall, 407 Ill. 137, 94 N.E.2d 873, certiorari denied 340 U.S. 937, 71 S.Ct. 483, 95 L.Ed. 676; People v. Rogers, 174 Misc. 31, 18 N.Y.S.2d 844; People v. Van Orden, 174 Misc. 65, 19 N.Y.S.2d 938.
In regard to § 973, in Herren v. State, 74 Okl.Cr. 432, 127 P.2d 384, this court said:
“Under such statute the extent of the inquiry, when the accused comes on for pronouncement of sentence, is a matter addressed to the sound discretion of the trial court.”
In this record, at no time did the defendant attempt to invoke the provisions of this statute. He did not at any time request the taking of evidence in mitigation or offer the slightest statement by way of mitigation. He only asked for mercy, something he did not show his victim. We are therefore of the opinion that the defendant’s first contention under both the law and the facts cannot be sustained. Therefore, the trial court neither erred nor abused his discretion in receiving the County Attorney’s oral statement before pronouncing judgment and sentence. Particularly is this true when the defendant, after the statement had been read into the record, upon the trial court’s interrogation, admitted :
"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?
[995]*995“Mr. Williams: No, 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 apparent that the defendant not only waived the provisions of 21 O.S.1951 §§ 973, 974, 975, but he at no time intended to invoke said provisions for mitigation, since apparently he had no such evidence to offer. In the absence of a showing in mitigation in a capital case, the extreme penalty may be imposed. People v. Laing, 2 Cal.2d 417, 41 P.2d 165.
Finally, it is urged, “The extent of the punishment is excessive and disproportionate to the crime of kidnapping, and the death penalty was actually punishment for the murder committed in Muskogee County, Oklahoma, as part of the same transaction for which the defendant had been previously convicted and sentenced.” It is further urged the crime of kidnapping merged into the crime of murder. Neither of these contentions can be sustained, for the law defines murder and kidnapping as two separate and distinct offenses. Therefore, there would not be such thing as merger of these separate offenses. Furthermore, Oklahoma does not recognize such doctrine. Burns v. State, 72 Okl.Cr. 432, 117 P.2d 155; McCreary v. Venable, 86 Okl.Cr. 169, 190 P.2d 467; State v. Stout, 90 Okl.Cr. 35, 210 P.2d 199. It is further urged these crimes arise out of the same transaction; but such fact will not result in a merger of these separate and distinct offenses. State v. Moore, 326 Mo. 1199, 33 S.W.2d 905. Although certain consequences may follow from certain prohibited acts, but are not necessarily the result of such prohibited acts, each of said acts may be prosecuted and punished as separate and distinct offenses, when so defined by statute. In such case, the punishment imposed would not constitute double punishment. State v. Empey, 65 Utah 609, 239 P. 25, 44 A.L.R. 558. In 24 C.J.S. Criminal Law § 1990, note 10, p. 1213, the rule is stated:
“Where there are several offenses, although each is part of the same transaction, * * * the imposition of separate punishments on conviction of each offense is not double punishment, * *
Pagliaro v. Cox, 8 Cir., 143 F.2d 900; Tesciona v. Blunter, 10 Cir., 151 F.2d 589; Carroll v. Sanford, 5 Cir., 167 F.2d 878; Murray v. United States, 9 Cir., 217 F.2d 583; Commonwealth ex rel. Withers v. Ashe, 350 Pa. 493, 39 A.2d 610. Hence, the punishment herein imposed for kidnapping is not objectionable on the ground that it constitutes double punishment. The statutes of Oklahoma provide the death penalty for three crimes other than murder, 21 O.S. 1951 § 701. These three crimes are robbery with firearms, 21 O.S.1951 § 801; rape in the first degree, 21 O.S.1951 §§ 1114, 1115; and kidnapping, 21 O.S.1951 § 745, all of which constitute separate and distinct crimes. The legislature, in fixing the penalties for these crimes, apparently regarded them of heinous character because they always present a potentiality of death for the victim. The maximum penalty fixed by the legislature for these crimes indicates a legislative belief that they were regarded as of equal gravity. From the County Attorney’s statement to the court, it appears that in addition to the crimes of kidnapping and murder, within the space of three days Williams committed the crime of robbery with firearms three times.
In none of these crimes, as revealed by a search of capital cases, is the possibility of death to the victim so certain as in the crime of kidnapping. For example, death resulted to each of the following victims of kidnapping: Charles A. Lindberg, Jr., 1932; Charles Fletcher Mattson, 1936; Charles Sherman Ross, 1937; Peter David Levine, 1938; James Bailey Cash, Jr., 1938; Robert C. Greenlease, Jr., 1953; and Wilma Frances Allen, 1955; and others.
[996]*996The reason for killing the victim is obvious. It is to destroy the means of the kidnapper’s positive identification. Hence, it was reasonable for the trial judge, in measuring the defendant’s intent at the time of the kidnapping in the case at bar, to consider that the defendant, Williams, not only intended to deprive Tommy Cooke of his liberty and property, but to take his life as the means of destroying the defendant’s identification. Moreover, it was for the trial court to consider that thereafter it was the defendant’s intent to steal Cooke’s automobile as a means of avoiding apprehension for the violations he had already committed, and also to use it as an instrument of escape for those crimes he intended to commit in his one man crime wave. Yet, it is urged there is nothing particularly vicious in the single act of kidnapping.
We might agree that contention possesses merit when the kidnapping is viewed as an isolated crime. But, the courts are not required to insulate themselves to facts clearly manifesting intent, and the ultimate consequences of criminal acts. Neither cold law, righteous justice, nor plain logic requires such an approach to the problem of imposing punishment in any case. To the contrary, justice requires a consideration of all the factors leading up to, at the time of the commission of the act, and even acts occurring subsequent thereto, in determining intent in many cases. When so measured, the instant act of kidnapping presents a most heinous picture. Tommy Cooke was marked for death immediately upon Williams’ asserting dominion over him. The defendant’s dastardly intent was confirmed when he lost little time in compelling his victim to drive to an isolated,, dead-end road where, in a cold and calculating manner, he immediately executed him. These are all matters within the trial court’s discretion and consideration in determining the penalty to be imposed.
In People v. Popescue, 345 Ill. 142, 177 N.E. 739, 744, 77 A.L.R. 1199 at pages 1205-1207, it is said:
“It is as much for the protection of the accused as it is for the people that, after the question of guilt has been admitted by a plea or reached by verdict, the judge should know something of the life, family, occupation, and record of the person about to' be sentenced. One of the most natural and common inquiries is whether the guilty person has ever been previously convicted of the same or similar offense. Courts are usually more lenient in pronouncing sentence upon first offenders. If the judge in making this inquiry has learned of some previous crime which the defendant admits he has committed, can it for that reason be said that the sentence imposed upon the guilty person was due to prejudice and should be set aside? Surely a provision of the law which often results in mercy and leniency toward a first offender cannot be the cause of error in every case where the trial judge, in making this inquiry, finds that tire defendant has committed other crimes of similar character. Such a construction would mean that hardened criminals and so-called 'repeaters’ could hide behind their crime records, and that a judge, before pronouncing sentence upon them, would be powerless to inquire into their past records.
“In many decisions of other jurisdictions it has been held that, where the court has discretion in fixing the punishment, it may consider the moral character of the accused, and such other evidence as it may deem necessary, as a guide in determining the punishment to be imposed (16 Corpus Juris, § 3065, p. 1297; State v. Wilson, 121 N.C. 650, 28 S.E. 416; State v. Wise, 32 Or. 280, 50 P. 800, 801; State v. Burton, 27 Wash. 528, 67 P. 1097, 1099; State v. Reeder, 79 S.C. 139, 60 S.E. 434, 14 Ann.Cas. 968) and in considering evidence in aggravation or mitigation of the offense the court may consider many matters ‘not admissible [997]*997on the issue of guilt or innocence’ (Toomer v. State, 112 Md. 285, 76 A. 118).”
To the same effect is Powell v. State, 94 Okl.Cr. 1, 229 P.2d 230, where it is said:
“Where the court has a discretion as to the character or the amount of punishment, it may be guided in the exercise of such discretion by accused’s past record, by the motives actuating the crime, or by the fact that accused previously has been convicted of a similar or other offenses.”
In the body of the opinion citing 24 C.J.S. Criminal Law § 1980, p. 1195, it is further said:
“Justice generally requires consideration of more than the particular acts by which the crime was committed, and that there he taken into account the circumstances of the offense together with the character and propensities of the offender.”
We can reconcile the logic of this contention only by entering the isolation booth of sheer ignorance as to all the facts of this case and by approaching the situation with an attitude which neither law nor justice require. The legislature placed no limitations in the statute, 21 O.S.1951 § 745, the pertinent part of which reads as follows:
“A. Every person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, for the purpose of extorting any money, property or thing of value or advantage from the person so seized, confined, inveigled or kidnaped, or from any other person, * * * shall be guilty of a felony, and upon conviction shall suffer death or imprisonment in the penitentiary, not less than ten years.”
To follow the defendant’s contention would compel us to read into' the statute elements which the legislature did not include. In truth, the legislature left the matter of imposition of the penalty in a case of kidnapping, where the plea is guilty, to the trial court and his sound discretion to be measured by the motive, the act, and its consequences. The reason for the lack of limiting provisions in the act are apparent. It was passed shortly after the Lindberg Law, 18 U.S.C.A. § 1201, in 1935. It was intended as a strong deterrent against such criminality. But, unlike the Federal act, it did not impose such requirements as bodily injury or death as a condition for the imposition of the death penalty. Clearly, the legislature did not intend that the courts of the State of Oklahoma should temporize with kidnappers. Neither did it intend that court should temporize with habitual criminals. The statutes provide for enhanced punishment for prior offenders. It is a fact that many of our most heinous crimes are committed by repeaters.
It is our sworn duty to uphold the law as written by the legislature. It is also our sworn duty to sustain the trial courts in the absence of error or abuse of discretion, neither of which we find in this record. We are concerned, herein only with matters of law. Mercy, which this defendant did not extend to his victim, is within the power of the Pardon and Parole Board and the Governor. Art. 6, Sec. 10, Okla. Const.
This is not the first capital case in which the death penalty has been imposed on a plea of guilty. Ellis v. State, 54 Okl.Cr. 295, 19 P.2d 972, robbery with firearms; Martin v. State, 54 Okl.Cr. 336, 20 P.2d 196, murder; In re Opinion of Judges, 54 Okl.Cr. 200, 16 P.2d 891, murder; Oliver v. State, 55 Okl.Cr. 7, 23 P.2d 718, murder; and other cases.
We are therefore of the opinion that the penalty herein imposed, when considered under all the circumstances, is not disproportionate, and we are further of the opinion had the trial court not considered the murder of the victim as an indication of the intent of the kidnapper, he would have been derelict in his duty and recreant to society. The judgment and sentence is affirmed.
The original time for execution of judgment and sentence, herein, having expired [998]*998due to the pendency of this appeal, it is considered, ordered, and adjudged that the judgment and sentence of the District Court of Tulsa County, Oklahoma, be carried out by the electrocution of this defendant on January 6, 1958.
POWELL, J., concurs.
NIX, J., dissents.