Opinion
No. 32832
Decided February 6, 1952.
Habeas corpus — Not available to review errors in conduct of trial — Or to challenge constitutionality of statutes — Adequate remedy afforded by appeal — Director of Public Welfare — Functions administrative, not judicial.
IN HABEAS CORPUS.
This proceeding in habeas corpus originated in this court. It is disclosed by the petition, the answer and exhibits attached thereto that petitioner, after having been convicted of a felony, was examined pursuant to Section 13451-20, General Code, and found by the court to be a "psychopathic offender" as that term is defined in Section 13451-19, General Code. Thereupon he was sentenced to serve a term of from one to twenty years in the penitentiary, but, by reason of his being found to be a psychopathic offender, he was ordered committed indefinitely to the Department of Public Welfare, during the continuance of which commitment the execution of the sentence was suspended.
Approximately eight months thereafter, the Superintendent of the Lima State Hospital and the Commissioner of Mental Hygiene, Department of Public Welfare, certified that in their opinion the petitioner "is not psychotic and no longer requires special care and treatment at Lima." Thereupon the Director of the Department of Public Welfare, under authority of Section 13451-22, General Code, ordered the transfer of petitioner "to the Ohio Penitentiary whereupon the prisoner's indefinite commitment to the Lima State Hospital shall be terminated and the sentence imposed by the Hamilton County Court of Common Pleas shall forthwith become effective." Petitioner was then transferred to the penitentiary where he has since been confined.
Mr. George Bailes and Mr. Myron S. Rudd, for petitioner.
Mr. C. William O'Neill, attorney general, and Mr. Max H. Dennis, for respondent warden.
Petitioner contends that he was deprived of his constitutional right to due process of law by the trial court's permitting of an amendment of the original indictment during trial by deleting therefrom the name of the person upon whom the offense was charged to have been committed and substituting therefor the name of another, pursuant to Section 13437-29, General Code, which permits amendment of an indictment before, during or after trial, "provided no change is made in the name or identity of the crime charged." (Italics added.)
The remedy for review of alleged errors or irregularities in the conduct of a criminal trial is by appeal and not by habeas corpus. In re Burson, 152 Ohio St. 375, 89 N.E.2d 651; In re Pullins, 155 Ohio St. 171, 98 N.E.2d 1; In re Ames, 155 Ohio St. 184, 98 N.E.2d 2.
The petitioner contends further that he was deprived of his liberty without due process of law because he was tried, convicted, and sentenced while the court knew of his insanity. The pleadings and exhibits do not bear out this claim. He was found not to be "psychotic," but to be a "psychopathic offender."
It is contended also that petitioner's constitutional right of due process was violated by a layman, the Director of Public Welfare, performing a judicial function in revoking the suspended sentence and ordering petitioner transferred to the penitentiary to serve the sentence imposed by the trial court, without taking him before such court. The act of the director in ordering the petitioner transferred to a designated penal institution upon being satisfied, after recommendation of the Commissioner of Mental Hygiene that such inmate had recovered, was purely administrative, not judicial.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, MIDDLETON, MATTHIAS and HART, JJ., concur.
For the reasons stated in the first paragraph of my concurring opinion in In re Levenson, 154 Ohio St. 278, 95 N.E.2d 760, I do not agree with the broad statement in the court's opinion that "the remedy for review of alleged errors or irregularities in the conduct of a criminal trial is by appeal and not by habeas corpus." However, I agree with the balance of the court's opinion. Furthermore, I concur in the judgment because I am of the opinion that the amendment made to the indictment was authorized by Section 13437-29, General Code, and the permitting of such an amendment did not deprive the petitioner of his constitutional right to due process of law. The name and identity of the crime charged was certainly the same after that amendment as it was before. Furthermore, petitioner's counsel at the trial agreed to the amendment at the time that it was made.
STEWART, J., concurs in the foregoing concurring opinion.