Opinion
No. 39215
Decided June 23, 1965.
Habeas corpus — Not available to determine questions reviewable on appeal — Right to bill of exceptions.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In September 1960, the Grand Jury of Gallia County returned an indictment charging petitioner, Tommy Harris, with murder in the first degree. Counsel was appointed to represent him, and on December 22, 1960, a jury found petitioner guilty of murder in the first degree with a recommendation of mercy. A motion for a new trial was filed, and, subsequently, a supplement to such motion on the ground of newly discovered evidence was filed. On April 18, 1961, the motion for a new trial was overruled. On May 19, 1961, petitioner filed his notice of appeal from his conviction. He alleges that he requested a bill of exceptions but that the court denied this request. No appeal was prosecuted from the alleged denial of this request for a bill of exceptions. The appeal from his conviction was dismissed on motion of the state. The grounds for dismissal by the Court of Appeals were the failure to file a bill of exceptions and the failure to file a bill of exceptions within the time prescribed by law. A motion for leave to appeal was overruled by this court.
Mr. Tommy Harris, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondents.
In this action, petitioner contends that he has been denied due process and equal protection of the laws by the refusal of the trial court to grant his request for a trial transcript so that he could perfect his appeal. However, no appeal was prosecuted from this alleged denial of a bill of exceptions.
The question, as to whether an accused has been denied a transcript of testimony and by such denial deprived of his constitutional rights, is a question which must be raised by appeal from the order denying such transcript and is not cognizable in habeas corpus. Tinsley v. Maxwell, Warden, 176 Ohio St. 185; McCoy v. Maxwell, Warden, 176 Ohio St. 249; and Vaughn v. Maxwell, Warden, 176 Ohio St. 289.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.