Syllabus.

property. Fidelity & Columbia Trust Co. v. City of Louisville, Kentucky, 245 U. S., 54.

Our conclusion is that the money of plaintiff in error deposited in the bank at Milwaukee, Wisconsin, is subject to taxation in Cuyahoga county, and that the court of appeals was correct in sustaining the demurrer to the petition.

Judgment affirmed.

NICHOLS, C. J., WANAMAKER, JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.

THE STATE OF OHIO V. ELLIS.

Jurors-Voir dire examination - Discretion of trial courtOpinion of venireman Recommendation of mercy-In first

degree murder case.

1. In a voir dire examination of veniremen to qualify them as fair and impartial jurors under the constitution and the law, such examination, where not specifically controlled by statute, is largely in the discretion of the trial judge, and no prejudicial error can be assigned in connection with such examination unless there be a clear abuse of such discretion.

2. A venireman's opinion as to the wisdom or unwisdom of a recommendation of mercy upon a conviction of murder in the first degree is not subject to inquiry upon a voir dire examination of the venireman.

3. Whether or not a recommendation of mercy shall be made upon finding an accused guilty of murder in the first degree is a matter vested fully and exclusively in the discretion of the jury.

(No. 15457-Decided March 19, 1918.)

Opinion, per WANAMAKER, J.

EXCEPTIONS by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Hamilton county.

Facts are stated in opinion.

Mr. John V. Campbell, prosecuting attorney, and Mr. Simon Ross, Jr., assistant prosecuting attorney, for plaintiff in error.

Mr. Raymond Ratliff, for defendant in error.

WANAMAKER, J. One Carl Fischer was being examined as to his qualifications as a juror. The following questions and answers appear from the record:

By Mr. Ratliff, attorney for defendant.

"Q. Mr. Fischer, in a case of murder in the first degree, would you be opposed to the consideration of the extension of mercy to a man who you felt was guilty of so great a crime? A. Yes sir.

"Q. You would be opposed to it? A. Yes sir. "Q. So that if you were of the firm conviction and were convinced beyond all reasonable doubt that a man was guilty of murder in the first degree, you would not be willing to consider the extension of mercy? A. No sir."

By the Court.

"If the law provided that you should consider mercy, would you feel so set in your opinion that you would bring in a verdict without recommendation of mercy, without even considering mercy? A. I don't think I could consider it fairly, Your

Opinion, per WANAMAKER, J.

Honor, no, because of my theory, an eye for an eye."

By Mr. Ross, attorney for the state.

"Q. I am not asking you whether you would vote for the death penalty. He merely asked you, whether under the instructions of the Court, along with the other instructions he will give you, whether you could take this matter up under consideration, or whether you would bottle yourself up and say, 'No I won't consider it at all'? A. First degree murder is a chair with me. If I am sure he is guilty, first degree, that is a chair.

"Q. You don't think you could consider the question of mercy at all? A. No sir, not if I felt sure it was first degree murder."

The counsel for the defendant, Reuben Ellis, submitted a challenge for cause and the court sustained the challenge and excused Mr. Fischer.

The counsel for the state took proper exceptions to the ruling of the court.

It is urged that the foregoing voir dire examination, the challenge of counsel, and the allowance of that challenge, to which the prosecutor excepted, are justified by virtue of Section 12400, General Code, which reads:

"Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life."

Opinion, per WANAMAKER, J.

This provision authorizing the jury to recommend mercy, whereupon the court shall impose only life imprisonment, is the result of an amendment made by the general assembly of Ohio in 1898, as found in 93 Ohio Laws, 223.

No case in Ohio seems to have considered fundamentally the legal practice and judicial limit on a voir dire of veniremen preliminary to challenge in criminal cases. In other states the practice is not uniform. In some, counsel for the prisoner and the state are given wide latitude and are almost free from control by the court in the preliminary questions. In others, the trial judge takes charge of the preliminary examination, takes it to the point of qualifying the jury, challenging for cause, and after he has completed this examination turns the veniremen over, first, to counsel for the state, and then to counsel for the defense, for further inquiry, if any; but such inquiry is limited to new matter and not merely to repetition of the inquiry of the trial judge.

The latter practice has much to commend it in the saving of time and in the avoiding of any unpleasantness and irritation between counsel and the veniremen, the latter often objecting to the vigorous cross-examination by persistent counsel, ofttimes impugning their sense of fairness and impartiality.

When we remember how in some jurisdictions days and weeks are consumed in qualifying the twelve men in the jury box for the trial of some murder case, the importance of keeping the voir dire examination within proper limits is most manifest. Our statute providing for challenge in

Opinion, per WANAMAKER, J.

criminal cases, Section 13653, General Code, is as follows:

"The following shall be good cause for challenging a person called as a juror on an indictment: "First. That he was a member of the grand jury which found such indictment;

"Second. That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed such opinion, the court shall thereupon examine such juror on oath as to the grounds thereof, and if such juror says that he believes he can render an impartial verdict notwithstanding such opinion, and the court is satisfied that such juror will render an impartial verdict on the evidence, the court may admit him as competent to serve as a juror in such case;

"Third. In indictments for a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death;

"Fourth. That he is related within the fifth degree to the person alleged to be injured, or attempted to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted, or to the defendant;

"Fifth. That he served on a petit jury drawn in the same cause against the same defendant, and such jury was discharged after hearing the evidence, or rendered a verdict thereon which was set aside;

"Sixth. That he served as a juror in a civil case brought against the defendant for the same act; "Seventh. That he has been subpœnæd in good faith as a witness in the case;