A juror may be excused on a challenge for cause by the prosecutor because he is opposed to capital punishment only where his opinions preclude him from finding the accused guilty of an offense punishable with death. ( State v. Pruett, 18 Ohio St.2d 167, approved and followed.) 6. Where, before a jury is empaneled, an accused expressly agrees to excuse any and all prospective jurors for cause merely because of their opposition to capital punishment, and at that time such accused has a statutory right to object to excusing any juror because of his opinions with regard to capital punishment unless such opinions preclude him from finding the accused guilty of an offense punishable with death, such accused may not thereafter complain about the excusing of one prospective juror merely because of such juror's opposition to capital punishment, especially where no question was raised at the time by such accused as to the excusing of such juror for that cause.
25(C), Revised Code, provided that a person called as a juror could be challenged for cause in a capital case if "his opinions preclude him from finding the accused guilty of an offense punishable with death." In State v. Pruett (1969), 18 Ohio St.2d 167, 169, 248 N.E.2d 605, this court stated that: "Unlike the Illinois statute, our statute does not authorize a challenge for cause of anyone merely because he says he `has conscientious scruples against capital punishment, or that he is opposed to the same.'
25, Revised Code, provided that a person called as a juror could be challenged for cause in a capital case if "his opinions preclude him from finding the accused guilty of an offense punishable with death." In State v. Pruett, 18 Ohio St.2d 167, 169, we noted that: "Unlike the Illinois statute, our statute does not authorize a challenge for cause of anyone merely because he says he `has conscientious scruples against capital punishment, or that he is opposed to the same.'
1. A person accused of murder in the first degree is not denied his constitutional right to a fair trial where veniremen are excused for cause from serving as jurors because their opinions preclude them from finding the accused guilty of an offense punishable with death. Witherspoon v. Illinois, 391 U.S. 510; Boulden v. Holman, 22 L. Ed. 2d 433; and State v. Pruett, 18 Ohio St.2d 167, followed.)
Thus in summarily reversing several state-court decisions, this Court invalidated death sentences imposed by juries from which jurors had been excluded because their voir dire responses indicated ambiguity or uncertainty as to whether their views about capital punishment would affect their ability to be impartial. Pruett v. Ohio, 403 U.S. 946 (1971), rev'g 18 Ohio St.2d 167, 248 N.E.2d 605 (1969); Adams v. Washington, 403 U.S. 947 (1971), rev'g 76 Wn.2d 650, 458 P.2d 558 (1969); Mathis v. New Jersey, 403 U.S. 946 (1971), rev'g 52 N.J. 238, 245 A.2d 20 (1968). And in Lockett v. Ohio, supra, we approved exclusions because the excused prospective jurors had made it "`unmistakably clear'" that they could not take an oath to be impartial.
See Grider v. State, 468 S.W.2d 393 (Tex.Cr.App. 1971). A partial list includes: Whan v. State, Tex.Cr.App., 438 S.W.2d 918 (1969) reversed as to death penalty 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971); Harris v. State, Tex.Cr.App., 457 S.W.2d 903 (1970) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971); Turner v. State, Tex.Cr.App., 462 S.W.2d 9 (1969) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2289, 29 L.Ed.2d 858 (1971); Quintana v. State, Tex.Cr.App., 441 S.W.2d 191 (1969) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); Mathis v. State, 283 Ala. 308, 216 So.2d 286 (1968) reversed as to death penalty 403 U.S. 946, 91 S.Ct. 2278, 29 L.Ed.2d 855 (1971); State v. Pruett, 18 Ohio St.2d 167, 248 N.E.2d 605 (1969) reversed as to death penalty 403 U.S. 946, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); Ladetto v. Commonwealth, 356 Mass. 541, 254 N.E.2d 415 (1969) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2288, 29 L.Ed.2d 858 (1971); People v. Bernette, 45 Ill.2d 227, 258 N.E.2d 793 (1970) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2290, 29 L.Ed.2d 858 (1971); State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968) reversed as to death penalty, Funicello v. New Jersey, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971); State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968), reversed as to death penalty 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855 (1971); State v. Adams, 76 Wn.2d 650, 458 P.2d 558 (1969) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2273, 29 L.Ed.2d 855 (1971); State v. Aiken, 75 Wn.2d 421, 452 P.2d 232 (1969) reversed as to death
Turning to the third issue raised, this court has recently held that a venireman may not be excused for cause in a capital case simply because he has voiced general objections to the death penalty or has expressed conscientious or religious scruples against its infliction. State v. Watson (1971), 28 Ohio St.2d 15; approved and followed in State v. Patterson (1971), 28 Ohio St.2d 181. Applying the decisions of the United States Supreme Court in Witherspoon v. Illinois (1968), 391 U.S. 510; Boulden v. Holman (1969), 394 U.S. 478; and Maxwell v. Bishop (1970), 398 U.S. 262, in light of State v. Pruett (1969), 18 Ohio St.2d 167, reversed, 403 U.S. 946, 29 L. Ed. 2d 857; and State v. Wigglesworth (1969), 18 Ohio St.2d 171, reversed, 403 U.S. 947, 29 L. Ed. 2d 857, the court indicated that: "Upon examination of a prospective juror * * * the most that can be demanded * * * is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed * * * to vote against the penalty of death regardless of the facts and circumstances which might emerge * * *."
ON REMAND from the United States Supreme Court. This cause, which was reported in 18 Ohio St.2d 167, has been remanded to our court by the United States Supreme Court for further proceedings. That court ordered and adjudged that the judgment of the Supreme Court of Ohio, insofar as it imposes the death sentence in this cause, be reversed, in the light of Witherspoon v. Illinois (1968), 391 U.S. 510; Boulden v. Holman (1969), 394 U.S. 478; and Maxwell v. Bishop (1970), 398 U.S. 262.
The Ohio statute under scrutiny in this case, R.C. 2945.25, has been operative since 1869 (66 Ohio Laws 287, 307) and has authorized the challenging of a prospective juror for cause where such juror had an opinion which precluded him from voting for a verdict which would result in the death penalty. However, on July 23, 1971, the United States Supreme Court reversed the judgments of this court in State v. Pruett (1969), 18 Ohio St.2d 167, and State v. Wigglesworth (1969), 18 Ohio St.2d 171, as to imposition of the death penalty. Applying such mandate of the United States Supreme Court as to challenges for cause upon a jury voir dire in a capital case, as reflected in Witherspoon, Boulden and Bishop, supra — which we must follow — we find that one or more of the members of the veniremen discharged in this case did not unambiguously state that he would automatically vote against the imposition of the death penalty in a proper case, or, in other words, no matter what the trial might reveal.
25, Revised Code, and Witherspoon v. Illinois (1968), 391 U.S. 510, were met. See State v. Pruett (1969), 18 Ohio St.2d 167; State v. Wigglesworth (1969), 18 Ohio St.2d 171; State v. Eaton, supra ( 19 Ohio St.2d 145). Appellant's eighth assignment of error is that the death penalty constitutes a cruel and unusual punishment.