In re Weber

• Decision Date: 23 February 1945
• Citation: 61 N.E.2d 502,75 Ohio App. 206
• Parties: In re WEBER.
• Court: Ohio Court of Appeals

61 N.E.2d 502

75 Ohio App. 206

In re WEBER.

Court of Appeals of Ohio, First District, Butler.

February 23, 1945

Syllabus by the Court.

1. Suspension of sentence during good behavior may be revoked by the court sua sponte, on information, satisfying the conscience of the court, of conduct not conforming to law or the order of the court.

2. A constable serving a writ of execution issued under Section 13454-2, General Code, is a public officer and is presumed to act in accordance with law and duty.

3. Habeas corpus is not the proper remedy for a claimed irregularity on the part of the constable in serving the execution.

Andrews & Weiss, of Hamilton, for petitioner.

Paul A Baden, Pros. Atty., of Hamilton, for State.

HILDEBRANT Presiding Judge.

Application for writ of habeas corpus was denied by the trial court. Appeal was taken to this court on questions of law.

Petitioner entered a plea of guilty to each of two affidavits filed against him by the health commissioner of Butler county Ohio, Before a justice of the peace, and was fined $500 and $100 respectively, each sentence being suspended by the justice, as appears by the following entry on the docket in each case:

'It is further adjudged and ordered that the fine of $500 be and is hereby suspended during good behavior and upon payment of said costs.'

'It is further adjudged and ordered that the fine of $100 be and is hereby suspended during good behavior and upon payment of said costs.'

The costs were paid by petitioner, and, thereafter, on report of the health commissioner to the justice of the peace, the suspensions were revoked and petitioner notified of that action by registered mail.

Thereafter, the justice issued executions in each case for fine and costs, as provided in Section 13454-2, General Code, which reads: 'When a judge or magistrate renders judgment for a fine, an execution may issue for such judgment and costs of prosecution, to be levied on the property, or, in default thereof, upon the body of the defendant. The officer holding such writ may arrest such defendant in any county and commit him to the jail of the county in which such writ issued, until such fine and costs are paid or secured to be paid, or he is otherwise legally discharged.'

The return of the executions, except for deletion of the word 'also' in the first case, reads as follows:

'Received this writ Oct. 18, 1943, and by virtue of its commands, I have also arrested and committed the within named George Wever to the county jail as within commanded, and left with the keeper thereof a certified copy of this writ.

'Henry L. Collins, Constable.'

Petitioner complains of the proceeding before the justice at the time of entering the plea of guilty, but it is obvious that appeal would have been the proper remedy, and, in accordance with the familiar doctrine that habeas corpus may not be substituted for such remedy, petitioner's contentions must fail.

It is urged that having paid the costs at the time sentence was suspended, the phrase 'during good behavior' is meaningless, and the court, acting on the report of the health commissioner, was without power to revoke the suspension sua sponte, without petitioner being present with opportunity to be heard and defend.

15 American Jurisprudence 138, Section 483, contains the following: 'The power to suspend sentence during the good behavior of the defendant has been questioned even in those jurisdictions where an indefinite suspension is allowed. This objection is placed on the ground that such action of the court expresses a condition, on...