Opinion
No. 37445
Decided July 5, 1962.
Habeas corpus — Not available to review judgment where adequate remedy by appeal.
IN HABEAS CORPUS.
Russell L. Grove, Richard J. Wozniak and the petitioner herein, James O. Bolin, were jointly indicted. The indictment contained two counts, the first charging them with unlawfully attempting to forcibly and maliciously break and enter certain offices, and the second charging them with unlawful possession of burglar's tools. Grove and Wozniak were convicted on both counts. Petitioner was found guilty on the first count and not guilty on the second count and was sentenced to the Ohio Penitentiary under the first count, where he is now confined and from which he seeks his release by this proceeding in habeas corpus instituted in this court.
Petitioner did not appeal from his conviction to the Court of Appeals, but Grove and Wozniak did. The Court of Appeals reversed the judgment of the trial court and remanded the cause on the ground that both counts of the indictment were defective and insufficient in law to describe the offenses against the appellants.
The allowance of the state's motion for leave to appeal brought the cause to this court for review. The judgment of the Court of Appeals so far as it pertained to count one of the indictment was affirmed but was reversed so far as it pertained to count two ( State v. Wozniak, 172 Ohio St. 517).
The respondent's return in the instant case recites in part that "as Warden of the Ohio Penitentiary he has the petitioner, James O. Bolin, in his custody * * * by virtue of a certain mittimus issued by the Common Pleas Court * * * pursuant to the conviction of attempted burglary."
Mr. Harry Ilman, for petitioner.
Mr. Mark McElroy, attorney general, and Mr. John J. Connors, Jr., for respondent.
Petitioner contends that, since he was found not guilty on count two and was found guilty only on count one which this court held did not state an offense, he is entitled to release from custody.
Petitioner has an adequate remedy by way of appeal to the Court of Appeals from the judgment of conviction to review the error of which he complains, and this court will not entertain a review of such judgment by a proceeding in habeas corpus. See State v. Wozniak, supra ( 172 Ohio St. 517), 522.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, TAFT and O'NEILL, JJ., concur.
MATTHIAS and BELL, JJ., dissent.
HERBERT, J., not participating.
This court held in State v. Wozniak, 172 Ohio St. 517, that the indictment under which petitioner is being confined in the Ohio Penitentiary was void.
The decision being rendered by the majority herein now relegates petitioner to such remedy of appeal as he may have by way of a motion for leave to appeal to the Court of Appeals. Section 2953.05, Revised Code. Implicit in that decision is that a denial by the Court of Appeals of petitioner's motion for leave to appeal would be an abuse of discretion.
The record of the Wozniak case in this court reveals that the petitioner herein was given leave to intervene as an appellee in the appeal prosecuted by the state in that case. Regardless of whether such granting of leave to intervene is effective as a means of bypassing the Court of Appeals, the fact remains that the petitioner is confined under an indictment that this court has held to be absolutely void. This is the classic example for the allowance of relief by habeas corpus. And the ends of justice would be accomplished more effectively by allowing such relief in this action, thus preventing the circuity of action which the majority opinion necessitates.
MATTHIAS, J., concurs in the foregoing dissenting opinion.