Opinion
No. 28320
Decided October 2, 1940.
Habeas corpus — Writ not substitute for appeal.
IN HABEAS CORPUS.
Ira Whitmore and Walter Maccombs were jointly indicted, tried and convicted in the Common Pleas Court of Athens county on the charge of soliciting a bribe, were sentenced to imprisonment in the Ohio penitentiary and are confined at the London prison farm.
A writ of habeas corpus is sought from this court to secure their discharge upon the ground that their commitments were made after the trial had lapsed and the judge had lost control thereof by reason of his absence from the courtroom during the trial. Attached to the petition as exhibits are copies of journal entries, approved by the nonresident judge who presided at the trial, and affidavits that during the course of the trial, particularly while counsel were presenting arguments to the jury, the presiding judge left the courtroom or conversed with the resident judge from a position in which it was impossible to see either the jury or the lawyers or hear the arguments to the jury.
The superintendent of the prison farm has filed an answer pleading that the Court of Common Pleas had jurisdiction of the subject-matter of the crime and of the persons of the defendants, and that the judgments and sentences have not been suspended, modified or otherwise changed and now stand as the final judgments and sentences of that court.
Mr. Louis Tyroler and Mr. John W. Bolin, for petitioner.
Mr. Thomas J. Herbert, attorney general, Mr. Crary Davis, Mr. Harold J. Rose and Mr. R.W. Finsterwald, for respondent.
The petitioner contends:
"This application is predicated upon the proposition that the trial court lost jurisdiction by going beyond the precincts of the courtroom and out of sight and hearing of the proceedings and therefore all subsequent proceedings, to wit: the verdict and judgment became, thereby, nullities.
"By reason of the judge's absence and his failure to retain control of the proceedings there was a complete cessation of the trial and no valid verdict could be returned nor judgment of the court rendered because the trial 'lapsed.' Where there is no trial there can be no appeal and our sole right of relief lies in a writ of habeas corpus which is prayed for from this court."
It appears from the journal entries attached to the petition that the Court of Common Pleas overruled motions by the defendants to suspend the execution of their sentences and admit the defendants to bail pending appeal.
The remedy for review of errors or irregularities in the conduct of a criminal trial or sentence of an accused is by appeal and not by habeas corpus when the court has jurisdiction of the crime and the person. Ex parte Van Hagan, 25 Ohio St. 426; 20 Ohio Jurisprudence, 445, Section 23.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.