Schott, In re
| Decision Date | 03 September 1968 |
| Citation | 241 N.E.2d 773,16 Ohio App.2d 72 |
| Parties | , 45 O.O.2d 168 In re SCHOTT. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. Due process of law is the exertion of the powers of government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe under the circumstances.
2. A person deprived of his liberty by a court without due process of law is entitled to a writ of habeas corpus for the purpose of inquiring into the matter.
3. A decision of a court which has authority to review the decisions of another court is binding upon the latter court. The decision of an appellate court is evidence of law and, in an inferior court, is in the nature of conclusive evidence.
4. A person charged with a misdemeanor in a Municipal Court is not entitled to a bill of particulars. And, the placing of an attorney prosecuting a person for a misdemeanor in such court in the custody of a bailiff for contempt of court for refusal to comply with an order to furnish the accused with a bill of particulars is a denial of due process to such attorney and an illegal restraint of liberty, entitling such attorney to his release from custody.
5. The placing of such attorney in the custody of the bailiff is, in such circumstances and for such purpose, a deprivation of liberty.
William A. McClain, Ralph E. Cors and Simon L. Leis, Jr., Cincinnati, for petitioner.
Gorman, Davis & Hengelbrok, Cincinnati, for respondent.
This matter comes before us upon the petition of Donald L. Schott for a writ of habeas corpus seeking his discharge from allegedly illegal restraint.
Petitioner, an assistant to the Solicitor of the city of Cincinnati, was held in contempt of court by a Judge of the Hamilton County Municipal Court upon refusal to comply with an order to furnish a bill of particulars. Thereupon, Schott was placed in the custody of the bailiff, the order of court reciting that he was 'there to remain until he shall provide the defendant with a bill of particulars or be otherwise duly discharged.'
One James Tucker had been charged in an affidavit filed in the Hamilton County Municipal Court with a violation of an ordinance of the city of Cincinnati. The defendant filed a motion for a bill of particulars requesting that the prosecution 'set up specifically the nature of the offense charged,' which motion was granted.
Petitioner refused to comply with the subsequent order of court stating that he did so upon the authority of City of Cincinnati v. McKinney, 101 Ohio App. 511, 137 N.E.2d 589.
The trial judge appointed counsel for the defendant, Tucker, to represent the court in the filing of an answer to the petition for the writ.
Counsel for the court filed a demurrer to the petition, contending that this court has no jurisdiction of the subject of the action and that the petition does not state facts which show a cause of action. Essentially, he supports these claims with a reference to the Code and reliance upon the axiom that habeas corpus cannot be used as a substitute for appeal.
Section 2725.05 of the Revised Code provides, in part:
'If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed. * * *'
In reiterating our overruling of this demurrer, we wish to make it plain that we do not cavil with either the Code or the general limitation placed upon use of the writ. We agree that, ordinarily, a court of general jurisdiction, legally competent to determine its own jurisdiction, having acquired jurisdiction over persons or subject matter, will not be interfered with by habeas corpus proceedings while the case is pending and undetermined. 26 Ohio Jurisprudence 2d 553, Habeas Corpus, Section 7, and cases cited thereunder.
However, upon the facts before us, we are constrained to take the position that the question whether the petitioner, Schott, has been denied due process of law has been raised.
Beyond question, no citizen of Ohio may be deprived of his liberty without due process of law.
Therefore, one who is deprived of his liberty by an Ohio court without due process of law is entitled to a writ of habeas corpus for the purpose of inquiring into the matter. 26 Ohio Jurisprudence 2d 568, Habeas Corpus, Section 14, and cases cited thereunder.
While the phrase is susceptible of a variety of interpretations, for the purposes of this matter before us we adopt the following definition. Due process of law is an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. State ex rel. Hoel v. Brown, 105 Ohio St. 479, at 485, 138 N.E. 230.
We view the instant case not as one broaching a question properly to be decided upon appeal but one...
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...87 S.Ct. 82, 17 L.Ed.2d 70. We do note, although parenthetically, that the case which appellant cites as controlling, In re Schott (1968), 16 Ohio App.2d 72, 241 N.E.2d 773 , was an original action in habeas corpus, rather than a direct appeal from a finding of contempt as in the case sub j......
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