Opinion
No. 37424
Decided January 30, 1963.
Habeas corpus — Not available to determine questions reviewable on appeal — Attempt to commit crime — Completion of same crime — Conviction on both counts — Guilt or innocence — Furnishing bill of exceptions.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. The Grand Jury of Summit County, on March 22, 1960, returned an indictment charging petitioner, Haden Garfield Page, on three counts. Count one, attempting to break and enter an uninhabited building during the night season with intent to steal; count two, forcibly breaking and entering the same building with intent to steal; and count three, possession of tools commonly used by burglars for breaking and entering houses and other buildings. Petitioner was arraigned on March 25, 1960, and entered a plea of not guilty to each count. He was tried to a jury and on September 21, 1960, was found guilty on each count. Petitioner informed the court that he was not going to file a motion for a new trial and was thereupon sentenced to a term of one to 15 years on the first count, one to 15 years on the second count and one to five years on the third count, the sentences to run consecutively.
Mr. Haden Garfield Page, in propria persona. Mr. Mark McElroy, attorney general, and Mr. John J. Connors, Jr., for respondent.
Petitioner's primary contention is that the court was without jurisdiction to sentence him, on the basis that one cannot be found guilty of an attempt to commit a crime and of the crime itself.
It must be noted at the outset that the indictment in the present case was a valid indictment.
Thus, we have a situation where the court had jurisdiction of the offenses and as a result of a valid indictment jurisdiction of the person of the accused and, therefore, jurisdiction to try, convict and sentence petitioner. Any error which arose came into being after such jurisdiction properly attached.
Basically it is petitioner's contention that the crime of attempt is a step in the execution of the crime of completion, and, if such attempt is successful and the completion is consummated, such attempt merges into the completion. He argues that where one is convicted of the offense of completion he cannot be convicted of the offense of attempt, the attempt having merged into the completion. If there is merit in the petitioner's contention, he is not presently in a position to urge such error in a habeas corpus proceeding.
The purpose of a proceeding in habeas corpus is to inquire into the legality of the present restraint of the petitioner. So long as a valid judgment and sentence exist which will legally justify the petitioner's confinement, relief by habeas corpus does not lie.
Here petitioner is legally confined under the sentences on counts two and three. If the sentence on count one was void, his remedy is by appeal from such void conviction and not by habeas corpus. McNally v. Hill, Warden, 293 U.S. 131. Petitioner's remedy in order to question his sentence on count one is to file a motion for leave to appeal in the Court of Appeals.
Petitioner raises questions relating to his innocence of the crimes charged. This is a matter not cognizable in a habeas corpus proceeding. In re Poage, 87 Ohio St. 72.
Petitioner has raised a further question relating to the refusal of the trial court to furnish him copies of his original records and bill of exceptions. This, too, is a matter which is not subject to review in a habeas corpus proceeding.
The petitioner has made no showing that there was any lack of jurisdiction in the trial court over either his person or the subject matter of the offenses with which he was charged.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.