Opinion
No. 35566
Decided May 21, 1958.
Habeas corpus — Not available to test constitutionality of statute — Not substitute for remedy by appeal.
APPEAL from the Court of Appeals for Madison County.
The petitioner, Latham, appellant herein, on his plea of guilty to two counts of an indictment charging sodomy, was ordered committed to the Lima State Hospital for observation as provided in Section 2947.25, Revised Code. Thereafter, petitioner was returned to court, and, upon consideration of a report of the superintendent of the hospital and other evidence, the court found him to be psychotic and sentenced him to the Ohio Penitentiary. Under the provisions of Section 2947.25, Revised Code, sentence was suspended, and petitioner was committed indefinitely to Lima State Hospital. He was later transferred to the penitentiary under authority of Section 2947.27, Revised Code, and later to the London Prison Farm.
By this proceeding in habeas corpus, brought in the Court of Appeals, petitioner seeks his release from the London Prison Farm on the grounds that Sections 2947.25 and 2947.27, Revised Code, are unconstitutional, and that the trial court, on petitioner's plea of guilty, was without authority to determine petitioner's mental condition without the intervention of a jury or a waiver of a jury trial.
The Court of Appeals found that petitioner was lawfully in custody, denied the relief sought, and ordered him remanded to the custody of respondent.
An appeal as of right brings the cause to this court for review.
Mr. Raymond Rockey Latham, in propria persona. Mr. William Saxbe, attorney general, and Mr. William M. Vance, for appellee, R.B. Eckle, superintendent.
The judgment of the Court of Appeals is affirmed on authority of In re Harley, 167 Ohio St. 48, 146 N.E.2d 121.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS, BELL and HERBERT, JJ., concur.
TAFT, J., concurs in the judgment.