Lockhart, In re, 32911

• Decision Date: 19 March 1952
• Docket Number: No. 32911,32911
• Citation: 105 N.E.2d 35,47 O.O. 129,157 Ohio St. 192
• Parties: , 47 O.O. 129 In re LOCKHART.
• Court: Ohio Supreme Court

Page 192

157 Ohio St. 192

105 N.E.2d 35, 47 O.O. 129

In re LOCKHART.

No. 32911.

Supreme Court of Ohio.

March 19, 1952.

Syllabus by the Court.

1. Where a person charged with a misdemeanor is brought before a justice of the peace on a complaint not made by the party injured and pleads guilty, the justice, under Section 13433-9, General Code, shall require the accused to enter into a recognizance to appear before the proper court, and the justice is wholly lacking in authority to render a judgment fining the accused and causing him to be imprisoned.

2. The extraordinary remedy of habeas corpus is for the purpose of determining the legality of the restraint or custody under which a person is held.

3. If the judgment or order under which an accused is imprisoned is a nullity, habeas corpus is the recognized and approved remedy to secure his release.

W. T. Reed, Waverly, for appellant petitioner.

Wray Bevens, Pros. Atty., Waverly, and Ralph Cors, Cincinnati, for appellee respondent.

ZIMMERMAN, Judge.

The present cause comes before this court on an appeal as of right from a judgment of the Court of Appeals for Hamilton County dismissing appellant Lockhart's petition in habeas corpus and denying him release from imprisonment in the Cincinnati Workhouse.

It appears from the bill of exceptions that on October 12, 1951, Ralph Davis, a deputy sheriff of Pike county, Ohio, filed a sworn complaint in the office of H. F. Junk, a justice of the peace in Pike County, which alleged 'that on or about the 21st day of September, 1951, at the * * * county aforesaid one William Lockhart, not then and there being the holder of a class A permit, issued by the Department of Liquor Control of the state of Ohio, did then and there in the county of Pike, manufacture intoxicating liquor for sale. Contrary to and in violation of Section 6064-54 of the General Code of Ohio.'

Upon being brought before the justice of the peace, Lockhart entered a plea of 'guilty.'

The docket of the justice of the peace shows the following:

'His plea of guilty was refused and a not guilty plea was entered, after hearing the evidence he was found guilty and fined $500 and 6 months in Cincinnati Workhouse. He was committed to jail until transported to workhouse.'

'* * *

'Taken to Cincinnati 10-13-51.'

At the hearing before the Court of Appeals, Lockhart testified, and such testimony was uncontradicted, that he pleaded guilty before the justice of the peace and did nothing more other than to ask for mercy. No evidence was introduced and no testimony taken.

Section 13433-9, General Code, reads:

'When a person charged with a misdemeanor is brought before a magistrate on complaint of the party injured, and pleads guilty thereto, such magistrate shall sentence him to such punishment as he may deem proper according to law, and order the payment of costs. If the complaint is not made by the party injured and the accused pleads guilty, the magistrate shall require the accused to enter into a recognizance to appear before the proper court as provided when there is no plea of guilty.'

Section 13433-10, General Code, provides:

'When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of such accused. If it appear that an offense has been committed, and there is probable cause to believe the accused guilty, he shall order him to enter into a recognizance with good and sufficient surety, in such amount as he deems reasonable, for his appearance at a proper time and before the proper court, otherwise, he shall discharge him from custody. If the offense charged is a misdemeanor, and the accused in a...