Opinion
No. 35306
Decided November 20, 1957.
Habeas corpus — Not available to test constitutionality of statute — Not substitute for remedy by appeal.
IN HABEAS CORPUS.
Harley, whose release from the Ohio Penitentiary is sought by this habeas corpus proceeding instituted in this court, was indicted on a charge of rape, pleaded guilty and was ordered sent to Lima State Hospital for examination for a period not to exceed 60 days, under authority of Section 2947.25, Revised Code. Thereafter he was returned to court, found not to be mentally ill or a mentally deficient or psychopathic offender, and was sentenced to the Ohio Penitentiary.
Mr. George Bailes, for petitioner.
Mr. William Saxbe, attorney general, and Mr. William M. Vance, for respondent.
Petitioner seeks release on the grounds (1) that Section 2947.25, Revised Code, is unconstitutional in that it confers judicial powers on a layman, and (2) that he was not properly sentenced in that, before passing sentence, the court inquired whether he had anything to say why "judgment" should not be pronounced against him, whereas the word, "sentence," should have been used instead of "judgment."
A proceeding in habeas corpus will not lie to test the constitutionality of a statute in favor of one who has been convicted, where the court in which the conviction was obtained had jurisdiction to determine the question of constitutionality. Yutze v. Copeland, Chief of Police, 109 Ohio St. 171, 142 N.E. 33, 32 A.L.R., 1048.
The questions raised by petitioner could have been determined on appeal from the judgment of conviction. Habeas corpus cannot be made a substitute for appeal, where the court had jurisdiction of the crime and the person. McConnaughy v. Alvis, Warden, 165 Ohio St. 102, 133 N.E.2d 133.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, MATTHIAS and HERBERT, JJ., concur.