Opinion
No. 31909
Decided March 15, 1950.
Criminal law — Conviction and sentence to one-to-fifteen-year term for burglary — Conviction and sentence to 15-year term as habitual criminal — Section 13744-1, General Code — Previous sentence not vacated by trial court — Section 13744-3, General Code — Habeas corpus not substitute for appeal — Petitioner in lawful custody of warden of Ohio penitentiary — Habitual criminal act constitutional.
APPEAL from the Court of Appeals for Franklin county.
Arthur Drexel filed in the Court of Appeals a petition for a writ of habeas corpus seeking discharge from custody of the warden of the Ohio penitentiary. The case is in this court on appeal as of right from the judgment of the Court of Appeals finding the petitioner lawfully in the custody of the warden.
On September 17, 1946, Drexel was found guilty of burglary and was sentenced to the Ohio penitentiary for a term of from one to fifteen years. In September 1946 he was indicted as an habitual criminal, under Section 13744-1, General Code, found guilty by a jury on October 23, 1946, and sentenced by the court for a term of 15 years. On October 28, 1946, he entered the Ohio penitentiary.
Drexel contends that he is entitled to be "released from the conviction of October 23" for the reason that the trial court imposed sentence as an habitual criminal without complying with Section 13744-3, General Code, which requires the court to "vacate the previous sentence," i. e., that of September 17.
It is contended by Drexel also that his conviction under the habitual criminal act, without setting aside the prior conviction, is a double conviction for a single act and therefore constitutes double jeopardy, and that the act (Section 13744-1 et seq., General Code) provides for cruel and unusual punishment in violation of Section 9, Article I of the Constitution and for an unequal application of law in violation of Section 26, Article II of the Constitution and Article XIV, Amendments, U.S. Constitution.
Miss Cecile J. Shapiro, for appellant.
Mr. herbert S. Duffy. attorney general, and Mr. Alan E. Schwarzwalder, for appellee.
The judgment of the Court of Appeals is affirmed.
The petitioner is not unlawfully restrained of his liberty by the sentence imposed on September 17, 1946, which commitment is not challenged in this proceeding. He is therefore in the lawful custody of the warden.
The sentence of October 23, 1946, may be voidable but it may not be attacked by habeas corpus as a substitute for appeal. Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec., 55; Ex parte Hagan, 25 Ohio St. 426; In re Allen, 91 Ohio St. 315, 110 N.E. 535.
The habitual criminal act is constitutional. Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18; McDonald v. Massachusetts, 180 U.S. 311, 45 L. Ed., 542, 21 S. Ct., 389, affirming McDonald v. Commonwealth, 173 Mass. 322, 53 N.E. 574, 73 Am. St. Rep., 293.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.