dissenting. The judgment of the Court' of Appeals should be affirmed.
The right of cross-examination is a valuable and fundamental right which must not be unreasonably limited. However, there was no unreasonable limitation of cross-examination in this cause.
There was unequivocal testimony by the victim of the crime on direct-examination as to his basis for identification of defendant, as follows:
“Q. Mr. Bower, going back to May 2, 1975, how long *92were you in the presence of the man that robbed yon?
“A. About five minutes.
“Q. And during that time, how close did you get to that'- man?
“A. Oh, like two or three feet.
“Q. Did you have an opportunity to observe his face?
' ‘.‘A. Yes.
“Q. Mr. Bower, at any time have you ever identified anyone else as being the man who robbed you?
“A. No.”
On cross-examination, Bower described facial characteristics of his assailant and was questioned concerning that description. There was no indication that the defendant Was wearing a- mask.
Furthermore, Reneill Hutchins, who was recognized by Bower as passing by the car some distance away, testified that the man with Bower resembled the defendant and also resembled another man. Once again, there was no indication of a mask.
Bower looked through several hundred pictures in school yearbooks and positively identified defendant. No such identification could have been m'ade if his assailant was wearing a mask.
The cross-examination of the victim also concerned a telephone conversation that defense counsel had with the victim on June 18, 1975. The trial court obviously sustained the objections to cross-examination, as cited in the majority opinion, because the cross-examination Was highly improper. The questions to which an objection was made and sustained were improper double questions starting with the phrase, “Do you recall telling me * * *,” rather than “Did you tell me * * *.”
The “Do you recall” portion is improper because even if the witness answers “No,” the implication is improperly placed in the minds of the jury that the witness may have made the statement, but simply did not recall •making it. Moreover, there is no indication in the record that the witness made any of the statements. Defense counsel made no effort to proffer to the court any inconsistent *93statements, and defense counsel was the witness to any statements that were made. Defense counsel made no effort to take the witness stand in rebuttal to testify to conflicting statements from the testimony of the victim, such as that his assailant was wearing a mask. The record smacks of a clever and improper method by defense counsel to plant a seed of doubt about Bower’s identification in the jurors’ minds. The questions to which an objection was sustained: were clearly improper in form and were improper without a prior representation by defense counsel that, in the event of a negative answer, testimony to the contrary would be produced.
It is presumed that the trial court sustained the objections for the correct reason, if the objections were properly sustained. The objections were general, except once when hearsay was incorrectly given as a ground therefor, and the trial court gave no reasons for the rulings on the record. Defense counsel made no effort to obtain a clarification of the basis of the court’s ruling, or to proffer his version of the victim’s answer although it was within his knowledge. The case of Burt v. State (1872), 23 Ohio St. 394, cited by the majority, leaves open the question of whether disclosure is required when the cross-examiner presumes to know the answer. The integrity of the judicial process can be preserved only if such a proffer is required in this instance.
Appellant’s first proposition of law should be overruled.
Appellant’s fifth proposition of law also should be overruled. Crim. E 16(C)(3) is designed to prevent any comment on the failure of a party to call a witness listed in response to discovery by noting that the party had listed the -witness but failed to produce that witness. Crim. E. 16(C)(3) was not designed to preclude valid comment upon the absence of a witness that would apply irrespective of the name being included in response to discovery. The comment in this was of the latter type. Defendant presented an alibi defense calling his brother to testify. Defendant also testified on his own behalf.
*94Ronell Hannah, the brother of' defendant, testified that defendant lived with him and that defendant was present in his home when he arrived home from work on May 2,1975, somewhere between 4:00 to 4:30 p. m. Defendant’s brother stated that his wife and children were also present in the home.
The defendant testified that he was at his brother and sister-in-law’s home on the day in question until “later •on that night.” He said that his sister-in-law was absent from the home until about 3:45 p. m. and was in the house with him thereafter.
The sister-in-law of defendant was the witness best able to present an alibi for the defendant, but the sister-in-law did not testify. Her existence as a witness came from the testimony of defendant and his brother. The question of her presence or absence was properly an issue irrespective of the furnishing or non-furnishing of her name on a discovery list. Judge Wanamaker in State v. Champion (1924), 109 Ohio St. 281, at pages 289-290, has stated:
“ * * * It is the presumption in fact as well as law that, if the witness known to be present at the time a vital •event takes place is available to testify, and fails to be -called, or to have his deposition taken, or his absence accounted for by the party in whose favor he would naturally be expected to testify, it is not improper for counsel upon the other side to infer that his testimony would be •unfavorable to the defendant; that the defendant’s story •of the transaction in question would not be corroborated if •such witness was present and testified, or his deposition taken. This is the common sense of common experiences in •every day life, and is not forbidden by any law as the proper subject of comment in a court of justice.”
Proposition of law number five should be overruled,
Therefore, the judgment of the Court of Appeals should be affirmed.
Herbert and Celebrezze, JJ., concur in the foregoing dissenting opinion.