dissenting. The prohibition in the Eighth Amendment against “cruel and unusual punishments” has been held to impose two limitations upon legislative imposition of penalties for criminal acts.
“First, the punishment must not involve the unnecessary and wanton infliction of pain * * *. Second, the punishment must not be grossly out of proportion to the severity of the crime.” (Citations omitted.) Gregg v. Georgia (1976),-U. S.-49 L. Ed. 2d 859, 875. In this case, the •defendant has plainly been proved guilty of being an accomplice to armed robbery. I cannot agree, however, that she may constitutionally be put to death for committing that act, solely because of a presumption that she is thereby guilty of the aggravated murder committed by the principal in this crime. There was no evidence that the ■defendant or the other participants in the robbery had an actual purpose or intent to kill Sidney Cohen, and the *68triggerman, A1 Parker, testified as the state’s principal witness that the shooting was unintentional. Nevertheless, the jury was instructed that:
“A person engaged in a common design with others to rob .by force and violence an individual or individuals of their property is presumed to acquiesce in whatever may reasonably be necessary to accomplish the object of their enterprise. And. if under the circumstances it may be reasonably’ expected that the victim’s life would be in danger by the manner and means of performing the criminal act inspired, each one engaged in the common design is bound by the consequences naturally or probably arising in its furtherance.
“If the conspired robbery and the manner of its accomplishment would be reasonably likely to produce death, each plotter is equally guilty with the principal offender as an aider and abettor in the homicide, even though the aider and abettor was not aware of the particular weapon used to-accomplish the killing. An intent to kill by an aider and abettor may be found to exist beyond a reasonable doubt under; such circumstances. ’ ’
Under these instructions, the jury had, of logical necessity,’ to find the defendant guilty of aggravated murder if it found that A1 Parker had a purpose to kill. '
In virtually any scheme to commit aggravated robbery, “it may be reasonably expected that the victim’s life would be in dangér by the manner and means of performing the criminal act,” for one of the elements of aggravated robbéry is that the principal offender “ [h]ave:a: deadly weapon or dangerous ordnance as defined in Section 2923.11 of the Revised Code on or about his person or under luis control;” of “[ijnflict, or attempt to inflict serious ‘physical'harm on another.” R. C. 2911.01. The result df the judicial presumption' stated in the jury’s instructions and approved by the court is, in effect, that virtually any accomplice: to aggravated robbery is automatically liable, for aggravated murder with specifications and for the death penalty, regardless of whether he or she had any actual intent' or purpose to kill, whenever one of the participants in the robbery purposely kills someone. By judicial pre*69sumption, the'Court is imputing the guilt of á murderer upon one Who would otherwise be guilty only of aggravated robbery, and is affirming the imposition of the death, sentence on the basis of that imputed guilt.
I recognize that past Ohio cases have reached this result. Black v. State (1921), 103 Ohio St. 434; State v. Doty (1916), 94 Ohio St. 258; Woolweaver v. State (1893), 50 Ohio St. 277; Goins v. State (1889), 46 Ohio St. 457. However, these eases were decided before the enactment of-the new Ohio Criminal Code in H. B. 511. The prior statute, R. C. 1.17, prqvided that “ [a]ny person who aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.” This statute:made no mention of the mens rea of an aider: and abettor, and the court’s judicial construction of Ohio law to require none therefore had a sound basis. The present statute, to the contrary, specifically adds language requiring proof of mental culpability. R. C. 2923.03(A) provides that:
“No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following :
“(2) Aid or abet another in committing the offense.” (Emphasis added.)
The additional statutory language has no effective meaning if the present law is held in fact to require no proof of culpability. The actual meaning of this change in the statute is shown by R. C. 2901.21, which provides that, except in cases of strict criminal liability, “a person'is not guilty of an' offense unless * * * [h] e has the requisite degree of culpability for each element as to which á culpable mental state is specified by the section defining the offense.” The clear meaning of this section, as applied'to a case of aggravated murder, is that a person is not guilty of aggravated murder unless he has the requisite culpability, which is that he acted purposely. Under R. C. 2901.-22, “[a] person acts purposely when it is his specific intention to cause a certain result. * * *”
The major prosecution argument opposing this con*70struction of the statute is that the committee .comment to R. C. 2923.03 states that “ [i]n essence, this section codifies existing case law with respect to ‘aiding and abetting.’ ” This general statement can not, however, control over the specific language of the statutes actually adopted, nor can it be taken to have weakened the statutory mandate that “Sections of the Revised Code defining offenses shall be strictly construed against the state, and liberally construed in favor of the accused.” R. C. 2901.04(A). The most reasonable construction of these statutes is that an aider and abettor, who is prosecuted and punished as if he were a principal offender, must be proved to have the culpability required as an element of that offense, in the same manner as the principal offender. In cases such as this, involving the death penalty for aggravated murder with specifications, this construction of the statutes is not only correct, but it is also constitutionally mandated, for otherwise the imposition of the death penalty upon an aider and abettor would run afoul of the Eighth Amendment.
I certainly agree that aggravated robbery is a serious crime for which the stringent statutory penalty of up to 25 years imprisonment is fully justified, and I believe that an accomplice in a case such as this would be guilty of involuntary manslaughter under R. C. 2903.04. Further, if an accomplice actually shares the purpose and intent to kill, and that purpose is proved as an element of the offense beyond a reasonable doubt, the accomplice is equally guilty and should be held liable to receive the death penalty in the same manner as the actual killer. But I also believe that the death penalty may constitutionally be applied only for the most serious of crimes, very possibly only for the act of murder itself, and that it is disproportionate to the offiense when imposed for a lesser crime.
A conclusive judicial presumption that one person had the specific intent to commit murder, because his confederate had such intent, necessarily will result in some accomplices to aggravated robbery receiving the statutory punishment for aggravated robbery, while others, for the same acts, will be sentenced to death because of the acts and *71purposes of others. The imposition of the death penalty in the latter eases is both arbitrary and grossly disproportionate to the crime.
I would hold that a trial court in a capital case under the present statute may not constitutionally presume that an accomplice shares a principal offender’s purpose to kill, and would hold that the fact must be proved beyond a reasonable doubt, under all the circumstances, in the case of an accomplice as well as in that of a principal. For that reason, I would reverse the verdict of guilt on the charge of aggravated murder, with specifications, and affirm the verdict of guilt of aggravated robbery.
O’Neill, C. J., and W. Brown, J., concur in the foregoing dissenting opinion.