
    City of Cincinnati, Appellee, v. Berry, Appellant.
    (Nos. 72-679 and 72-680
    — Decided May 16, 1973.)
    
      
      Mr. Thomas A. Luebbers, city solicitor, Mr. Ralph E. Cors and Mr. John 8. Moraites, for appellee.
    
      Messrs. Kelley, Grossheim & Bavely and Mr. E. Hamlin Bavely, for appellant.
   Per Curiam.

A majority of the members of the court are of the opinion that since Argersinger v. Hamlin (1972), 407 U. S. 25, 32 L. Ed. 2d 530, does not announce a proposition of law formulated by this court, but is rather the latest of a “widening class of cases” from the United States Supreme Court prescribing new federal constitutional requirements, it would be improvident for us to declare the case to have retroactive effect in Ohio in the absence of any indication that the United States Supreme Court intends it to be so applied.

The judgments of the Court of Appeals are affirmed,

Judgments affirmed.

Herbert, Corrigan, Ceeebrezze and P. Brown, JJ., concur.

0 ’Neill, C. J., Stern and W. Brown, JJ., dissent..

Stern, J.,

Dissenting. Even though the United States Supreme Court has not yet decided whether Argersinger v. Hamlin (1972), 407 U. S. 25, is to have retrospective application, I am of the opinion that the constitutional right to have appointed counsel at state expense in criminal trials, as held in Gideon v. Wainwright (1963), 372 U. S. 335, is so fundamental in our system of criminal jurisprudence that the pronouncement on this subject in Gideon pertains to Argersinger. I would reverse the judgment of the Court of Appeals. See dissent by O’Neill, C. J., in State v. Leroy (1972), 30 Ohio St. 2d 138, 145; Lovelace v. Haskins (C. A. 6), decided March 21, 1973; Henderson v. Maxwell (1964), 176 Ohio St. 187; Henderson v. Cardwell (C. A. 6, 1970), 426 F. 2d 150; Woodall v. Neil (C. A. 6, 1971), 444 F. 2d 92; Goodwin v. Cardwell (C. A. 6, 1970), 432 F. 2d 521.

O ’Neill, C. J., and W. Brown, J., concur in the foregoing dissenting opinion. 
      
       Such as, for example, State v. Sims (1971), 27 Ohio St. 2d 79, 272 N. E. 2d 87; State v. Leroy (1972), 30 Ohio St. 2d 138, 283 N. E. 2d 136.
     
      
      
         James v. Strange (1972), 407 U. S. 128, 141.
     
      
       See Potts v. Supt. of Vir. State Penitentiary (1972), 213 Va. 432, 192 S. E. 2d 780; Garrett v. Puckett (1972), 348 F. Supp. 1317.
     