concurring. I concur in the conviction of the defendant upon the charge of first degree murder.
The majority opinon is per curiam and, thus, presents *199no syllabus which states the law of the case. Therefore, each member of the court concurring in the majority opinion is committed to each statement of law therein as establishing a rule of law.
That portion of the opinion with which I can not agree reads as follows:
“* * * The record in this case reveals that appellant did not object to the exclusion of Wilkins [a juror who was challenged and dismissed for cause]. This failure to object at the voir dire examination constitutes a waiver of the objection and precludes appellant from raising the question now.” (Emphasis added.)
The portion of the opinion in which this statement is made concerns the seating of the jury and the challenging of jurors for cause in a case where, if the jury finds the defendant guilty, the jury is then charged with the responsibility for determining whether the death penalty should be inflicted upon the defendant or he should be sentenced to life imprisonment.
The Supreme Court of the United States, in Witherspoon v. Illinois (1968), 391 U. S. 510, 20 L. Ed. 2d 776, established certain constitutional requirements that must be met before a juror may be dismissed for cause in a death ease upon the ground of the juror’s personal convictions in opposition to the death penalty.
This court, in a series of opinions, beginning with footnote 2, State v. Pruett (1969), 18 Ohio St. 2d 167, 169, 248 N. E. 2d 605, has attempted to assert a rule which waives thé defendant’s constitutional rights established in Witherspoon, supra, in those cases tried prior to the decision in Witherspoon.
The statement in footnote 2 in Pruett, supra, which was not controlling in that case, was incorporated into the syllabus (paragraph one) in State v. Duling (1969), 21 Ohio St. 2d 13, which was a postconviction remedy proceeding. Paragraph one of the syllabus in that case reads as follows: *200prior to the decision of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U. S. 510, who did not object when, on the voir dire, some prospective jurors who expressed opinions against capital punishment were excused without a conclusive showing that their opinions would preclude them from finding the accused guilty of an offense punishable by death, as required by Witherspoon, and for which, under the provisions of Section 2945.25, Revised Code, objection could have been made at that time, is precluded from raising such issue for the first time in a postconviction remedy proceeding.”
*199“A defendant convicted of murder in the first degree without a recommendation of mercy in a trial conducted
*200Paragraph six of the syllabus in State v. Wigglesworth (1969), 18 Ohio St. 2d 171, refers to that rule. That case was before this court on a direct appeal.
Now that position is being established as a rule of law in the instant case which is before this court on direct appeal.
The rationale of that position is that Section 2945.25(C), Revised Code, the predecessor of which was originally enacted in Ohio in 1869, can be construed to require the same conclusion as that reached in Witherspoon, supra. It is further reasoned that defendant’s counsel, because of the provisions of that statute, should have anticipated Witherspoon and have made an objection upon the grounds which were later asserted in Witherspoon by the Supreme Court of the United States.
I disagree with that reasoning and position because the language in Section 2945.25(C), Revised Code, has never [prior to Pruett, supra, footnote 2] been construed by this court to assert the voir dire examination requirements demanded by Witherspoon, supra, before a juror in a death case could be challenged for cause.
Both prosecution and defense attorneys in Ohio recognize that the trial court procedure in the selection of jurors, which has been accepted, followed and approved in this state in first degree murder cases, frequently has not conformed to the requirements of Witherspoon, supra.
The distressing thing about this court taking the position that, in cases tried prior to the decision, in Wither-*201spoon, supra, a defendant can be denied Ms constitutional rights asserted in Witherspoon, supra, is that whether the defendant is granted or denied those rights will determine whether he lives or dies.
In other words, this court is holding that a defendant, who did not anticipate that the Supreme Court of the United States would decide Witherspoon, supra, in the way in which it did, has waived his constitutional rights established by Witherspoon and will be required to die, while if he had anticipated Witherspoon he would have lived.
A second equally unfair and unjust result of this position is that it places the onus of a client’s death directly upon the shoulders of his counsel. This court advises the attorney in a death ease tried before Witherspoon, supra, that because that counsel did not anticipate the Supreme Court’s decision in Witherspoon, and enter an objection upon the ground that anticipated that decision, his client will die, whereas had he anticipated that decision and objected to a procedure which had, up to that date, been considered acceptable in Ohio under Ohio law, his client would live.*
TMs rule avoids the application of Witherspoon, supra.
In the instant case, there is only one juror about whom the defendant raises a question as to whether the requirements of Witherspoon, supra, were met. In Pruett, supra, there were three jurors about whom the defendant raised a question. This court determined in Pruett, supra, that the requirements of Witherspoon, supra, were met in the challenge for cause as to those three. In Wigglesworth, supra, there was a question about one juror. In Duling, supra, however, the record discloses that there were 14 jurors dismissed on a challenge for cause where the constitutional requirements of Witherspoon were violated.
On at least three previous occasions this court has refused to follow a decision of the United States Supreme Court on remand and has attempted to find a way to avoid *202the effect of the decision. In each instance, this conrt has been summarily reversed.
1. Doughty v. Sacks (1962), 173 Ohio St. 407, remanded by the United States Supreme Court for reconsideration in the light of Gideon v. Wainwright (1963), 372 U. S. 335. Doughty v. Maxwell (1963), 372 U. S. 781. This court adhered to its original judgment, Doughty v. Sacks (1963), 175 Ohio St. 46, and was reversed by the United States Supreme Court in Doughty v. Maxwell (1964), 376 U. S. 202.
2. State v. McLeod (1962), 173 Ohio St. 520, dismissed — no debatable constitutional question involved. The Supreme Court of the United States vacated the judgment and remanded the cause to this court “for consideration in light of Massiah v. United States [1964], 377 U. S. 201,” in McLeod v. Ohio (1964), 378 U. S. 582. Previous judgment of the Court of Appeals affirmed by this court in State v. McLeod (1964), 1 Ohio St. 2d 60. Reversed by the United States Supreme Court in McLeod v. Ohio (1965), 381 U. S. 356.
3. State v. O’Connor (1964), 177 Ohio St. 181, appeal dismissed on the ground that it presented no substantial constitutional question. The United States Supreme Court vacated the judgment of this court and remanded the cause for consideration in the light of Griffin v. California (1965), 380 U. S. 609. O’Connor v. Ohio (1965), 382 U. S. 286. This court affirmed the previous judgment of the Court of Appeals in State v. O’Connor (1966), 6 Ohio St. 2d 169. Reversed by the Supreme Court of the United States in O’Connor v. Ohio (1966), 385 U. S. 92.
The question in the O’Connor case was very similar to the question presented by the instant case.
In my opinion, Schmerber v. California (1966), 384 U. S. 757, footnote 9, and Singer v. United States (1965), 380 U. S. 24, do not support the position which the majority of this court asserts; namely, that a failure to anticipate Witherspoon, supra, in the light of Section 2945.25(C), Revised Code, constitutes a waiver of a constitutional right, the loss of which means death rather than life for the defendant.
Witherspoon, supra, did not result in a reversal of the conviction of the defendant. The conviction was affirmed as to guilt but reversed as to the death penalty.