State v. Jones ( 1965 )

Per Curiam.

In each of these cases, the defendant was convicted of a felony, a motion for leave to appeal was filed in the Court of Appeals after expiration of the time within which appeal could have been filed as a matter of right (see Section 2953.05, Revised Code), that motion was denied, and a motion for leave to appeal was allowed by this court.

Although a large number of questions were raised, this court was and is of the opinion that there was only one question raised which might possibly have justified a reversal of the judgments of conviction in these cases. That question was whether the trial court erred in' admitting against these defendants the confession of one Hunter, who was indicted at the same time as the defendants for the commission of the same alleged crime but was tried separately, when Hunter was not called as a witness and defendants were given no opportunity to cross-examine Hunter.

On examining the records, there is nothing to indicate that any such question was presented to the Court of Appeals.

Until the defendant in each case does advise the Court of Appeals on a motion for leave to appeal that he will present such a question if he is allowed to appeal and the Court of Appeals thereafter dénies such motion, we cannot reasonably hold that there has been an abuse of discretion by the Court of Appeals. If this court should now consider such a question before it had been presented to the Court of Appeals, we would be permitting the defendant to bypass the Court of Appeals and, in effect, appeal from the judgment of the Common Pleas Court directly to this court. Our Constitution does not authorize any such short-cut. The appeal in each of these cases is therefore dismissed on the ground that the motion for leave to appeal was improvidently allowed.

Appeals dismissed.

Taft, C. J., Zimmerman, Matthias, 0 ’Neill and Brown, JJ., concur.