Opinion
No. 38025
Decided June 12, 1963.
Habeas corpus — Remedy not available, when — Plea of double jeopardy — Defense to be raised at trial and pursued by appeal.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In February 1959, the Grand Jury of Cuyahoga County returned an indictment charging petitioner, Robert Lowther, with two counts of murder in the first degree. One count charged petitioner with killing one Rudolph Kordis while in the perpetration of a robbery, the other count charged him with killing the same Rudolph Kordis with deliberate and premeditated malice.
Petitioner was tried to a jury and found guilty of murder in the first degree, with a recommendation of mercy, on one count of the indictment, and guilty of murder in the second degree on the other count. Petitioner was sentenced to the Ohio Penitentiary for life on both counts, the sentences to run concurrently.
Mr. Robert Lowther, in propria persona. Mr. William B. Saxbe, attorney general, Mr. William C. Baird and Mr. John Cianflona, for respondent.
Basically petitioner's argument is that the killing of Rudolph Kordis constituted but one transaction, and that the conviction and sentencing on two counts therefor constituted double jeopardy.
The plea of double jeopardy is a matter of defense which must be raised in the trial court and pursued by way of appeal. Double jeopardy does not go to the jurisdiction of the trial court and, therefore, is not a ground for relief by habeas corpus. Vertz v. Sacks, Warden, 173 Ohio St. 459; Weaver v. Sacks, Warden, 173 Ohio St. 415; and Maloney v. Maxwell, Warden, 174 Ohio St. 84.
In any event, petitioner is not entitled to release in habeas corpus. Even conceding that the sentence on one count would be void on the grounds alleged by petitioner, he is still properly incarcerated on his sentence on the other count and, therefore, is not entitled to release in habeas corpus. Page v. Green, Supt., 174 Ohio St. 178.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.