Summary
In Calloway v. Maxwell (1965), 2 Ohio St.2d 128, 128, 31 O.O.2d 196, 196, 206 N.E.2d 912, 912, the court stated that: "[t]he determination as to whether the jury should view the premises where the crime occurred lies within the sound discretion of the trial court.
Summary of this case from State v. KarnsOpinion
No. 39217
Decided April 28, 1965.
Habeas corpus — Denial of motion for jury to view area where crime occurred — Discretion of court — Claimed error not cognizable in habeas corpus.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In October 1963, petitioner, Herbert A. Calloway, while represented by retained counsel, was convicted by a jury of burglary (Section 2907.10, Revised Code) and grand larceny and was sentenced to the Ohio Penitentiary, the sentences to run concurrently. Subsequently, after the statutory period for filing an appeal as of right had expired, petitioner, on his own behalf, filed a motion for leave to appeal in the Court of Appeals. This motion was denied.
Mr. Herbert A. Calloway, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
The sole question raised by petitioner in this action is whether the denial of his motion for an order to have the jury view the area where the crime occurred invalidated his conviction.
It is petitioner's contention that by such refusal the trial judge deprived him of his constitutional right to call witnesses.
The determination as to whether the jury should view the premises where the crime occurred lies within the sound discretion of the trial court. Section 2945.16, Revised Code, and 23 Corpus Juris Secundum 989, Criminal Law, Section 986. Any claimed abuse of such discretion must be raised by the statutory post-conviction remedy of appeal, and such error is not cognizable in habeas corpus. Spence v. Sacks, Warden, 173 Ohio St. 419, and Walker v. Maxwell, Warden, 1 Ohio St.2d 136.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.