
    FRANK R. BURNS v. STATE.
    No. A-7173.
    Opinion Filed Nov. 19, 1930.
    On Rehearing Jan. 6, 1931.
    (294 Pac. 653.)
    J. G. Austin and Preston S. Davis, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and P. K. Morrill, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Craig county of aiding a felon, and was sentenced to serve a term of six months in the state penitentiary.

This is a companion case to No. A-7022, McGhee v. State, 49 Okla. Cr. 387, 284 Pac. 649, just decided. The information in that case is the same as in the instant case. What was there said as to the sufficiency of the information, the statement of facts, and the matters proven are applicable in this case. The evidence on the part of the state in this case is substantially the same as in the McGhee Case. An examination of the record indicates that this defendant took a less active part in procuring the custody of White, the fugitive, from Kansas authorities and in aiding his escape than either of his codefendants. This fact, no doubt, accounts for the light sentence imposed. No material error is made to appear.

The case is affirmed.

On Petition for Rehearing.

Plaintiff in error in his petition for rehearing earnestly contends that the statute upon which the prosecution is based, section 1621, Comp. Stat. 1921, is unconstitutional. This was not urged in the briefs in the first instance, so was not discussed in the opinion. The statute has been treated as a valid statute in the Cole Case, the Pranks Case, and the Huckaby Case, cited in the opinion. We are not impressed with argument now made that the statute is void. It is not in conflict with the federal or the state Constitution, and is valid.

DAVENPORT and CHAPPELL. JJ.. concur.  