Opinion
No. 37973
Decided May 15, 1963.
Habeas corpus — Not available to determine questions available on appeal — Errors which do not entitle petitioner to release — Confinement for several crimes — Validity of only one conviction attacked.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. On June 2, 1950, petitioner, Elmer McConnaughy, was indicted by the Grand Jury of Belmont County for the crime of rape. After the required psychiatric examination he was pronounced sane and while represented by counsel pleaded guilty to the indictment and was sentenced to the Ohio Penitentiary. He was paroled from the penitentiary on December 21, 1956.
On April 14, 1958, the Grand Jury of Summit County returned an indictment charging petitioner with three counts of carnally knowing a child under 16 years of age, to wit, one child 14 years of age, and two 10 years of age, one count of improper exposure of his person to a child under 14 years of age, and two counts of improper exposure to a child 10 years of age. While represented by counsel he was tried to a jury and found guilty on one count of carnally knowing a child under 16 years, on two counts of attempting to carnally know a child 10 years of age and on all three counts of improper exposure. Having been examined pursuant to the statute and declared sane, he was sentenced to the Ohio Penitentiary, the sentences on all six counts to run consecutively. On December 1, 1958, petitioner was declared a parole violator, under his 1950 sentence for rape, from Belmont County.
Mr. Tom Reed, for petitioner.
Mr. William B. Saxbe, attorney general, and Mr. John Cianflona, for respondent.
Petitioner at the present time is confined in the penitentiary under both his sentence for rape in Belmont County and the sentences imposed under his later convictions in Summit County. In the present action, petitioner is attacking only the sentence imposed by the court in Belmont County. Basically, it is his contention that the Belmont County indictment was void on the ground that it merely stated he raped one Rosemary Davey, without stating that Rosemary Davey was a female person. However, in the present action, we do not reach the merits of petitioner's contention.
An action in habeas corpus reaches only the validity of the present confinement. If a prisoner would not be entitled to an immediate release upon a successful determination of the action in his favor, habeas corpus does not lie. Errors which do not entitle him to release must be urged by appeal.
Thus, where one is in custody under sentences for multiple convictions for different crimes, any one of which, if valid, would warrant his present detention, errors relating to only one or less than all such convictions must be raised by appeal and not by habeas corpus.
So long as a person is lawfully in custody for any reason, habeas corpus is not available to test the validity of other convictions. Page v. Green, Supt., 174 Ohio St. 178.
In the present case, petitioner being confined under convictions for several different crimes and attacking the validity of only one of such convictions, it must be presumed he is lawfully in custody under his other sentences and is not entitled to relief by habeas corpus.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.