An appeal from the District Court of Oklahoma County; John A. Brett, Supernumerary Judge.

Melvin Alphonzo Lewis was convicted of Murder and appeals. Modified and affirmed.

Charles W. Adams and Lewis E. Darrell, Oklahoma City, Okl., for plaintiff in error.

G.T. Blankenship, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.

MEMORANDUM OPINION

BUSSEY, Judge.

¶1 This is an appeal from a judgment and sentence rendered in Oklahoma County District Court Case No. 31504, wherein Melvin Alphonzo Lewis, hereinafter referred to as the Defendant, was tried by a jury for the crime of Murder, found guilty, and sentenced to death in the electric chair.

¶2 The facts adduced on the trial are identical with those in Tilford v. State, Okl.Cr., 437 P.2d 261, and will not be discussed in this opinion, except to emphasize that the record clearly establishes that the defendant, Freddie Lee Tilford, and Donald Lee Pendleton, planned the robbery of the Fina service station located at 23rd and Bartell Road, Oklahoma County, Oklahoma; that the defendant was the driver of the get-away car and did not enter the premises nor participate in the assault made upon Luther McDonald who was robbed, shot and beaten by the co-defendant Freddie Lee Tilford.

¶3 We further observe that the co-defendant Donald Lee Pendleton, did not testify as a State's witness in the instant case, but turned State's evidence and testified in the Tilford trial and that the said Pendleton who had accompanied Tilford into the service station and participated in the robberies occurring therein and the abduction of Luther McDonald, corroborated Lewis' testimony relating to his role as the driver of the get-away car.

¶4 We further observe that Pendleton entered pleas of guilty to the charge of the murder of Luther McDonald and the two armed robberies which arose out of the incident here involved, and was sentenced to serve three terms of thirty years each.

¶5 We have carefully reviewed the casemade, consisting of 702 pages, and have considered the briefs of the respective parties and are of the opinion that the defendant was capably represented in the trial court, vigorously and fairly prosecuted by the County Attorney's staff, and that the trial judge scrupulously protected the defendant's constitutional and statutory rights. We are of the further opinion that the evidence amply supports the defendant's conviction for the crime of Murder as a principal under the felony murder rule; however, in the light of the entire record, we are constrained to hold that the punishment of death by electrocution is excessive and should be modified to imprisonment in the State Penitentiary for a term of life imprisonment, and as so modified, the judgment and sentence appealed from is affirmed. Modified and affirmed.

NIX, P.J., and BRETT, J., concur.