248 N.E.2d 605 (Ohio 1969), 41163, State v. Pruett

Docket Nº:41163.
Citation:248 N.E.2d 605, 18 Ohio St.2d 167
Opinion Judge:LEACH, J., of the Tenth Appellate District, sitting for HERBERT, J. TAFT, C.J.
Party Name:The STATE of Ohio, Appellee, v. PRUETT, Appellant.
Attorney:Robert D. Webb, Pros. Atty., and Walter E. Thayer, Conneaut, for appellee., Nazor & Nazor and Gordon L. Nazor, Ashtabula, for appellant. Mr. Robert D. Webb, prosecuting attorney, and Mr. Walter E. Thayer, for appellee., Messrs. Nazor & Nazor and Mr. Gordon L. Nazor of Ashtabula, for appellant.
Judge Panel:MATTHIAS, C. WILLIAM O'NEILL, SCHNEIDER, LEACH and DUNCAN, JJ., concur. [ * ]
Case Date:June 11, 1969
Court:Supreme Court of Ohio
 
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Page 605

248 N.E.2d 605 (Ohio 1969)

18 Ohio St.2d 167

The STATE of Ohio, Appellee,

v.

PRUETT, Appellant.

No. 41163.

Supreme Court of Ohio.

June 11, 1969

Syllabus by the Court

A state statute may authorize challenge of a prospective juror for cause in a capital case where 'his opinions preclude him from finding the accused guilty of an offense punishable with death.' (Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, followed; Section 294.25, Revised Code, applied.)

Defendant was indicted for first degree murder, was found guilty by the verdict of a jury which did not recommend mercy, 1 and was sentenced to death.

The judgment of conviction was affirmed by the Court of Appeals. This court denied an application for leave to appeal, and dismissed a claimed appeal as of right for the reason that it involved no substantial constitutional question.

The Supreme Court of the United States granted a petition for certiorari and remanded the cause of this court for reconsideration in the light of Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

Since no question had previously been raised in this court in this case with respect to the exclusion of prospective [18 Ohio St.2d 168] jurors by reason of their opposition to capital punishment, 2 this court had that question briefed and argued by the parties.

Page 606

Robert D. Webb, Pros. Atty., and Walter E. Thayer, Conneaut, for appellee.

Nazor & Nazor and Gordon L. Nazor, Ashtabula, for appellant.

TAFT, Chief Justice.

In the opinion by Mr. Justice Stewart in Witherspoon v. Illinois, supra, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, it is stated that that case did not 'involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.'

That opinion further states:

'If the state had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that [18 Ohio St.2d 169] the resulting jury was simply 'neutral' with respect to penalty.'

Also, it is stated in footnote 21 to that opinion:

'We repeat, however, that nothing we say today bears upon the power of a state to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them * * *.'

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.' Our statute has, since at least 1869 (66 Ohio Laws 287, 307), apparently agreed with the conclusion stated in the opinion in Witherspoon, and thus has authorized challenging a juror for cause only where such a juror had opinions which precluded him from voting for a verdict that would result in the death penalty.

Thus Section 2945.25, Revised Code, reads, so far as pertinent:

'A person called as a juror on an indictment may be challenged for the following causes:

'* * *

'(B) That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if the juror has formed or expressed such an opinion, the court shall examine such juror on oath, as to the grounds...

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