No. 72-164 | Ohio | Sep 27, 1972
Appellant sets forth three propositions of law.
In propositions one and three, appellant complains that persons were erroneously excluded from the jury merely because they had general opposition to the death penalty, and that the death penalty is unconstitutional as cruel and unusual punishment. Because of the holdings in Furman v. Georgia (1972), U. S. , 33 L. Ed. 2d 346" court="SCOTUS" date_filed="1972-06-29" href="https://app.midpage.ai/document/furman-v-georgia-108605?utm_source=webapp" opinion_id="108605">33 L. Ed. 2d 346, and State v. Leigh (1972), 31 Ohio St. 2d 97" court="Ohio" date_filed="1972-07-19" href="https://app.midpage.ai/document/state-v-leigh-6754943?utm_source=webapp" opinion_id="6754943">31 Ohio St. 2d 97, that the carrying out of a death penalty imposed at the discretion of the trier of the facts constitutes “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments to the United States Constitution, this court, on motion of appellant, on August 3,1972, modified the death sentence against appellant and reduced his sentence to life imprisonment, as prescribed in R. C. 2901.01. Therefore, appellant’s first and third propositions of law are moot.
In his second proposition of law, appellant argues that the prosecuting attorney committed error “in violating
' Prior’to trial, appellant requested that the “prosecutor be instructed that he cannot examine the defendant beyond the point of asking if ■ he has ever been convicted of a state or federal offense.” That, motion was granted, and the prosecuting attorney was instructed that “he can not examine the defendant .as to prior convictions beyond the point of asking him if he had ever been convicted of a state or federal offense,” and, if so, how many times and whether he had been imprisoned.
. 'During' the trial, a witness was asked by the prosecuting1 attorney if he had ever been arrested and convicted of a state or federal offense. Appellant’s counsel objected, and the, prosecuting attorney said, “the court’s ruling had only to do'with the defendant, Judge.” The objection was sustained. Appellant contends that that statement by the prosecuting attorney in the presence of the jury improperly implied that the state was being unfairly restricted in its questions and. that the appellant’s record was being unfairly kept from the jury.
.•. These. are matters within the sound discretion of the trial court! Absént a showing that such discretion was abused, there is no prejudicial error. Furthermore, the or-den of thé trial court in response to appellant’s motion in limine limiting, examination by the prosecuting attorney was directed, to the questioning of the appellant. Here, the examination about which appellant complains was of a witness.
The judgment of the Co.urt of Appeal’s is affirmed; except as to the the sentence of death, that sentence having heretofore been reduced to life imprisonment.
Judgment accordingly.