The opinion
Per Curiam.
At issue is whether the venire for jury requirements of R.C. 2945.18 and 2945.19 are applicable to a “capital offense” where the charged offense of aggravated murder is not punishable by death, there being no specifications of aggravating circumstances pursuant to R.C. 2929.04.
Central to our ascertainment of legislative intent is R.C. 2901.02(B) effective January 1,1974, which states that, “[aggravated murder, and any offense for which death may be imposed as a penalty, is a capital offense.” Paragraph one of the syllabus of State v. Henry (1983), 4 Ohio St. 3d 44 , stated that “[pjursuant to R.C. 2901.02(B), aggravated murder is a capital offense regardless of whether death may be imposed as a result of the conviction thereof.” The validity of the construction of R.C. 2901.02(B) in Henry , at 46, which recognized “* * * that aggravated murder was a crime independent of whether the death penalty could be imposed” has since been approved in State, ex rel. Johnson, v. Shoemaker (1983), 6 Ohio St. 3d 215 .
Henry recognized that there are statutory safeguards and detriments applicable to those “* * * charged with committing a crime that is classified as a capital offense,” and listed, among those statutes, R.C. 2945.18, venire for jury in capital cases and R.C. 2945.19, special venire in capital cases. Id. at 46, fn. 3 . We now hold that the venire and special venire for jury in capital cases, as prescribed by R.C. 2945.18 and 2945.19, respectively, are applicable to one charged with aggravated murder under R.C. 2903.01, irrespective of whether such offense is not punishable by death due to lack of specifications of aggravating circumstances pursuant to R.C. 2929.04. 1
For reason of the foregoing, the judgment of the court of appeals granting the writ of mandamus is affirmed.
Judgment affirmed.
Celebrezze, C.J., W. Brown, Sweeney, C. Brown and J. P. Celebrezze, JJ., concur.
Locher and Holmes, JJ., dissent.
Subsequent to our decision in Henry and during the pendency of this appeal, R.C. 2901.02(B) was amended effective April 4, 1984 so that only an offense for which death may be imposed as a penalty is a capital offense. As a result, special protections are afforded to those facing the possibility of the death penalty, but now the criminal justice system is relieved of the burden and expense of such venire where those charged do not face the possibility of the death penalty.