Opinion
No. 36493
Decided December 28, 1960.
Habeas corpus — Not available to test constitutionality of statute, when — Not substitute for remedy of appeal.
IN HABEAS CORPUS.
While serving a sentence in the Ohio State Reformatory for the crime of grand larceny, petitioner was transferred as a patient to Lima State Hospital. While at the hospital he and two other inmates made an attempt to escape, in the course of which a guard was killed. Petitioner was indicted for first degree murder under Section 2901.03, Revised Code.
On January 2, 1956, petitioner appeared in court with counsel, withdrew a plea of not guilty and voluntarily entered a plea of guilty to murder in the second degree. The court accepted this plea, sentenced him to life in the Ohio Penitentiary and entered judgment accordingly.
In September 1958, petitioner filed in the Court of Appeals a notice of appeal and a motion for leave to appeal. The court dismissed the appeal as of right because it was not "timely perfected" and overruled the motion for leave to appeal because "not well taken." This court overruled a motion for leave to appeal and dismissed an appeal as of right for the reason that no debatable constitutional question was involved.
Petitioner has now invoked the original jurisdiction of this court by this proceeding in habeas corpus to obtain his release from incarceration, contending that Section 2901.03, Revised Code, under which he was indicted, is unconstitutional.
Mr. Thomas B. Womack, in propria persona. Mr. Mark McElroy, attorney general, and Mr. Aubrey A. Wendt, for respondent.
Habeas corpus may not be employed as a substitute for the remedy of appeal or as a means for testing the constitutionality of a statute in favor of one who has been convicted, where the court wherein conviction was obtained had jurisdiction to determine the question of constitutionality. Yutze v. Copelan, Chief of Police, 109 Ohio St. 171; Ex parte Calhoun, 154 Ohio St. 81.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.