Opinion
No. 36920
Decided May 31, 1961.
Habeas corpus — Not available as substitute for adequate remedy by appeal — First degree murder — Included offenses.
IN HABEAS CORPUS.
Petitioner, Lamos, was indicted and tried for first degree murder, found guilty of second degree murder, and sentenced to the penitentiary for life. He has now invoked the original jurisdiction of this court by this proceeding in habeas corpus to obtain his release.
He contends that, since he was not charged with or tried for second degree murder, he could not legally have been convicted of second degree murder; that the sentence for life is cruel and unusual punishment; that the confession used in evidence against him was not voluntarily made; that he was not represented by competent counsel of his own choosing; and that he was convicted on false and conflicting evidence.
Mr. Byron G. Lamos, in propria persona. Mr. Mark McElroy, attorney general, Mr. Aubrey A. Wendt and Mr. John J. Connors, Jr., for respondent.
A person charged with first degree murder may be convicted of second degree murder, a lesser included offense, if the evidence so warrants. Section 2945.74, Revised Code; Bandy v. State, 102 Ohio St. 384. Petitioner had an adequate remedy by way of appeal from the judgment of conviction and sentence to review the alleged errors and irregularities of which he here complains and cannot now have such a review by a proceeding in habeas corpus.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.