The opinion
BRETT, Judge
(concurs in part, and dissents in part).
I concur that the evidence is sufficient to sustain the conviction in this case; but I believe it was error for the court to admit testimony of the September 9, 1973, conversation, because it was too remote in time to be included as part of the res ges-tae ; and I believe the punishment is excessive and resulted from improper instructions to the jury, as well as one invalid conviction.
The evidence is sufficient without the September 9 conversation. While I believe it was error to admit that conversation, under all the facts I do not consider it to be reversible error. The punishment is obviously excessive and resulted from the jury’s confusion of pardon and parole matters with its duty to assess proper punishment. Likewise, if the defendant is not entitled to attack the jury’s verdict by means of affidavits of jurors, it is by the same token improper for the prosecution to attempt to correct the record by the same type affidavit, as was done in this appeal. See: note 95, under 22 O.S. 952 , for cases cited. The manner in which the court handled the jury’s question was improper and the full responsibility for the absence of the additional instruction falls squarely upon, the court. Had the parties settled *1061 the matter in open court, with the court reporter being present, no such condition would exist.
Lastly, I believe it was improper for the court to have admitted the judgment and sentence of September 19, 1956, when defendant was allegedly sixteen years of age, and without the assistance of counsel entered a plea of guilty to second degree burglary. Admittedly, the other two judgments and sentences reflect that defendant was represented by counsel and were admissible. To what extent the first judgment and sentence influenced the jury, it is not now possible to guess. But nonetheless, admission of that instrument was improper.
Therefore, I believe the judgment and sentence is excessive and should be modified by this Court. Also, I believe Garbutt v. State, Okl.Cr., 481 P.2d 775 (1971) is applicable to this case.