Opinion
No. 39107
Decided November 25, 1964.
Habeas corpus — Preliminary hearing — Purpose of — Refusal to appoint counsel — Indictment for offense of escape — Defense of no escape where no legal confinement — Matters not for determination in habeas corpus proceeding.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court, wherein petitioner, Wayne Anthony Smith, is attacking the validity of his detention under a conviction for escape in Ross County. Section 2901.11, Revised Code.
According to the testimony of petitioner, he was taken into custody on October 8, 1963, on suspicion that he was guilty of stealing wire. The records show that, on the same day, an affidavit was filed charging petitioner with carrying a concealed weapon. On October 9, accompanied by an attorney, he pleaded not guilty. On October 17, a preliminary hearing was held, petitioner was bound over to the grand jury, and bond was set. He was then placed in the custody of the sheriff of Ross County and incarcerated in the county jail, pending the hearing by the grand jury. On December 26, he escaped from the county jail and later was apprehended. On January 8, 1964, the Grand Jury of Ross County returned an indictment charging him with escape. Section 2901.11, Revised Code. Counsel was appointed to represent him, and he was tried to and found guilty by a jury. He is presently incarcerated under such sentence.
Mr. Wayne Anthony Smith, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
In this action, petitioner attacks his conviction for escape, on the basis that the court at his preliminary hearing on the escape charge refused to appoint counsel to represent him. So far as the refusal of the court to appoint counsel for petitioner is concerned, such a hearing is preliminary in nature and no rights or defenses are concluded therein. The refusal to appoint counsel at such a time does not infringe the constitutional rights of an accused. United States, ex rel. Cooper, v. Reincke, 333 F.2d 608.
Petitioner's second contention is that he could not be guilty of escape because his original confinement was illegal. A prisoner under sentence for escape cannot attack the legality of the confinement from which he escaped in a habeas corpus proceeding directed to his detention under the sentence for escape. Bannett v. Hollowell (Iowa), 212 N.W. 701.
Petitioner, in this proceeding, desired to call as witnesses certain police officers. He stated that these officers would testify that petitioner was denied counsel at his preliminary hearing, and that at the time he was arrested no formal charge had been made against him but that he was picked up on suspicion of stealing wire. Inasmuch as the respondent stipulated these facts for the purpose of this proceeding, such testimony was unnecessary.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.