The opinion
ON REHEARING
BUSSEY, Presiding Judge:
This cause was summarily submitted after Appellant had discharged his attorneys and failed to file a brief. The Opinion of this Court affirming judgment and sentence was rendered on September 7, 1972; thereafter, a Petition for Rehearing was filed, with fifteen days given counsel for Appellant to brief; however, the Court did not request a Reply Brief from the Attorney General.
On Rehearing it is urged that the punishment imposed upon Appellant is excessive, cruel, and unusual punishment for the reason of special circumstances, and should be modified. We observe that the sentence of 15 years imprisonment for a felony, after former conviction, is not excessive, since the evidence was ample to support the verdict of the jury and the minimum punishment which Appellant could have received under said charge, is 10 years imprisonment. Based on the facts and circumstances of the instant case, this punishment is well within the range provided by law.
Appellant contends, however, that since he was an informer for the Oklahoma City Police Department, the Oklahoma Bureau of Investigation, and for certain Federal authorities, in the case of Rogers, High-tower and Willman v. State, Okl.Cr., 488 P.2d 366 (1971), he has requested, and been granted, Administrative Confinement amounting to virtual isolation because he is fearful for his life.
The Affidavit of Warden Park Anderson states, in substance:
“ * * *
3. That Richard Lee Cothrum is kept in administrative security for protection of his life.
4. That administrative security prisoners and other prisoners are not kept together.
5. That Richard Lee Cothrum does not eat, work, exercise, or participate in recreation with other inmates.
6. That Richard Lee Cothrum is not eligible for Trustee duties. * * * ”
Appellant has also attached, as an exhibit, a newspaper item which states as follows :
“ISOLATION OF FELON DISCLOSED
A 5-times convicted felon is being kept in isolation in the county jail because he was scalded by fellow prisoners last November, it was learned today.
The disclosure came in a district court hearing at which the burned man, Richard Lee Cothrum, 26, invoked the fifth amendment rather than testify for three Houston defendants who are charged with illegal possession of heroin.
TRIO ARRESTED
Cothrum appeared as a defense witness Wednesday and stated under oath that he was unable to obtain narcotics from the three suspects when he acted as an undercover agent for police last Oct. 13. The trio was arrested at the Airline Motel, and police confiscated narcotics and marijuana in their room, testimony showed. Cothrum’s testimony Wednesday benefitted the defendants. But it was ordered purged from the record this morning, after Judge C. R. Board conducted a hearing away from the jury.
MAN WARNED
The judge ordered the unusual, eviden-tiary hearing because James R. McKinney, an assistant district attorney who is prosecuting the Houston suspects, warned Cothrum he could be charged with perjury. Board stopped the defense *1304 proceedings for Robert Morgan Rogers, Frank Vernon Hightower and Lawrence Walter Willman, all of Houston, on the spot, and ordered that Cothrum’s attorney be contacted and instructed to consult his client.
INSTRUCTIONS GIVEN
Leon Tabor, Cothrum’s lawyer, appeared in court with Cothrum this morning, and wrote down on paper the fifth amendment answer he instructed him to give to all questions asked by the three defendants’ attorney, Raymond Burger. Coth-rum gave the answer five times. Tabor said his client had been scalded after the three Houston men were arraigned and jailed, and after Cothrum also was jailed on two other pending felony charges.
ACT CONFIRMED
He said Cothrum refused to tell him who did it.
Sheriff Bob Turner confirmed that Coth-rum was scalded when some other prisoner, whose identity he said is unknown, poured boiling water from a coffee container on his abdomen and groin.
TREATMENT GIVEN
Head Jailer Bill Lair said Cothrum was taken to Mercy Hospital for emergency treatment, and was returned to the hospital for daily treatment through Nov. 15, until his scald wound improved. Cothrum’s testimony that Judge Board ordered stricken from the record, on grounds that Cothrum was not advised of his constitutional rights, was in direct conflict with the testimony given by a state crime bureau expert and three Oklahoma City police officers.”
The record of the Pardon and Parole Board discloses that the five previous convictions referred to in the newspaper article, set forth above, are as follows:
Burglary, 2nd Degree
Burglary, 2nd Degree
Possession of Narcotics, AFCF
Robbery with Firearms
Uttering a Forged Prescription, AFCF.
The newspaper article, as well as the record before this Court, makes it abundantly clear that Appellant, at the trial of Rogers, Hightower and Willman, did not cooperate with the authorities, but instead, testified favorably toward the defendants; however, such testimony was stricken for the reason that he had not been advised by counsel and when advised by counsel, he refused to testify, claiming his privilege under the fifth amendment. It is interesting to note, and the records of the Pardon and Parole Board reflect, that all of the prisoners — Rogers, Hightower and Will-man — have been discharged from the penitentiary. It is thus readily apparent that they cannot attack Richard Lee Cothrum while he is an inmate of the penitentiary. It might as easily be argued that the punishment be increased for the protection of Mr. Cothrum from the people he informed against in order to prevent them from harming him should he be placed on the streets to which they have been discharged.
In the light of the prior convictions and criminal record of the Appellant, it would appear that to modify this sentence on the grounds suggested, would be to trade a catfish for a minnow, for it appears that Mr. Cothrum is more of a habitual criminal than those against whom he informed.
For the above and foregoing reasons, I am of the opinion that the application to modify and the Petition for Rehearing should be denied, and the Clerk of this Court is directed to issue the Mandate forthwith.
BLISS, C. F., Jr., J., concurs.
BRETT, J., dissents.