Evans v. Sacks , 114 Ohio App. 179 ( 1960 )

Petitioner, John H. Evans, is an inmate of the Ohio Penitentiary under sentence of the Common Pleas Court of Franklin County.

Section 2901.13, Revised Code, establishes the crime of armed robbery and provides, in part:

"No person, while armed with a pistol, knife, or otherdangerous weapon, by force or violence, or by putting in fear, shall steal from the person of another anything of value." (Emphasis added.)

The pertinent portion of the indictment reads:

"* * * did unlawfully, and being armed and by force and violence rob Anthony Sabina of his pocketbook containing $48.00 and a $50.00 check and other personal papers with intent to deprive the said Tony Sabina thereof." (Emphasis added.)

The journal entry of conviction and sentence shows on its face that it was based on the crime of armed robbery.

Petitioner contends that since the indictment omits the phrase, "with a dangerous weapon," as well as facts which would so import, the indictment does not validly charge the crime of armed robbery. He concedes that the indictment sufficiently states the crime of unarmed robbery. Section 2901.12, Revised Code. However, he contends that the conviction and sentence, being for a higher crime than charged, is void, and that he is entitled to be released from custody.

The distinction between a court acting without jurisdiction in the sense of power and acting with power but erroneously is both elementary and fundamental. Traditionally, power to act as a court in an ordinary criminal case rests on jurisdiction of the person and of the subject matter (in this connection, a valid indictment). The power concept may have been expanded to include the deprivation of a substantial constitutional right which prevents a fair trial, e. g. the complete denial of the assistance of counsel. See In re Burson (1949), 152 Ohio St. 375.

The scope of habeas corpus in each state varies greatly. In many it may be used for errors which do not go to the power of the court. New York apparently allows habeas corpus to attack a conviction or sentence. People, ex rel. Griffin, v. Hunt, Warden (1934), 150 Misc. 163, 270 N. Y. Supp., 248. However, with reference to attacks on judicial action, the law of Ohio has restricted habeas corpus to a showing of a lack of power.

In the instant case it may be assumed, although we do not so decide, that the inclusion of the mere word, "armed," is not sufficient to validly charge the crime of armed robbery. Yet the trial court obtained jurisdiction of the subject matter by virtue of the grand jury's return of an indictment which sufficiently charged unarmed robbery. It clearly had jurisdiction of the person. No claim was made of a violation of the requirements of due process. The actions of the trial court in trying, convicting and sentencing petitioner for armed robbery may have been a flagrant error, but the flagrance of the error does not determine the nature of the error. Since the trial court had power to issue its orders, the writ of habeas corpus is not available. Other remedies may be used under Ohio law to correct such errors, the most obvious being that of appeal.

In Horsley v. Alvis (C.C.A. 6 — 1960), 281 F.2d 440, an Ohio grand jury had returned an indictment for burglary of an uninhabited dwelling. The trial court on motion of the prosecutor permitted an amendment to charge burglary of an inhabited dwelling. In a habeas corpus proceeding, the federal Court of Appeals held that the amendment changed the character and identity of the crime and that it was, therefore, void. It ordered the District Court to issue the writ of habeas corpus.

The court in Horsley, supra, does not appear to have considered the validity of the original indictment as returned by the grand jury; nor does the court indicate on what theory that original indictment might have been vitiated by the subsequent amendment. The point is not before us in the instant case. If Horsley is authority that a conviction and sentence which does not comport with the charge in an indictment is not only erroneous but void under Ohio law, then we do not agree. Ex Parte Larche (1960), 171 Ohio St. 205.

Petitioner remanded to custody.

BRYANT, P. J., and DUFFY, J., concur.