
    The State of Ohio, Appellee, v. Leigh, Appellant.
    (No. 71-578
    Decided July 19, 1972.)
    
      
      Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Leonard Kirschner, for appellee.
    
      Mr. John J. Qetgey, Jr., and Mr. Jade G. Buhenstein, for appellant.
   Per Curiam.

We modify the judgment of the Court of Appeals.

Appellant postulates his appeal upon (1) claiming that the suppression of evidence by the prosecution relating to ballistics tests would have been assistive to the jury in the determination of the penalty and (2) the infliction of the death penalty constitutes cruel and unusual punishment in violation of the Federal and State Constitutions., There being no denial by the defendant as to participation in the robbery, and no question raised as to the finding of gnilt, this appeal is limited to the question of the degree of the penalty.

The United States Supreme Court, in Furman v. Georgia (decided June 29, 1972), 33 L. Ed. 2d 346, has held 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.

Under that holding, which we are required to follow, the infliction of any death penalty under the existing law of Ohio is now unconstitutional (with the possible exception of the taking of the life or attempting to take the life of the President, Vice-President, or a person in the line of succession to the presidency [R. C. 2901.09], or of the Governor or Lieutenant Governor [R. C. 2901.10], which statutes purport to impose a mandatory penalty of death).

Although the question of defendant’s guilt is not before us, we have reviewed the record of the proceedings in this case and find ample evidence to support the jury’s verdict of guilty of murder in the first degree.

Therefore, except as to the death sentence, the judgment of the Court of Appeals is affirmed. With regard to the death sentence, the judgment of the Court of Appeals must be modified and the sentence is reduced to life imprisonment, as prescribed in R. C. 2901.01.

Judgment accordingly.

O’Neill, C. J., Heebeet, Coeeigau, Steeít and Leach, JJ., concur.

Beowh, J., not participating.

Schneidee, J.,

concurring. I concur except as to the parenthesized language contained in the third from last paragraph of the per curiam opinion.  