
    Bolin v. Maxwell, Warden.
    (No. 37445
    Decided July 5, 1962.)
    
      Mr. Harry Illman, for petitioner.
    
      Mr. Mark McElroy, attorney general, and Mr. John J. Connors, Jr., for respondent.
   Per Curiam.

Petitioner contends that, since he was found not guilty on count two and was found guilty only on count one which this court held did not state an offense, he is entitled to release from custody.

Petitioner has an adequate remedy by way of appeal to the Court of Appeals from the judgment of conviction to review the error of which he complains, and this court will not entertain a review of such judgment by a proceeding in habeas corpus. See State v. Wosniak, supra (172 Ohio St., 517), 522.

Petitioner remanded to custody.

Weygandt, C. J., Zimmerman, Taet and O’Neill, JJ., concur.

Matthias and Bell, JJ., dissent.

Herbert, J., not participating.

Bell, J.,

dissenting. This court held in State v. Wosniak, 172 Ohio St., 517, that the indictment under which petitioner is being* confined in the Ohio Penitentiary was void.

The decision being rendered by the majority herein now relegates petitioner to such remedy of appeal as he may have by way of a motion for leave to appeal to the Court of Appeals. Section 2953.05, Revised Code. Implicit in that decision is that a denial by the Court of Appeals of petitioner’s motion for leave to appeal would be an abuse of discretion.

The record of the Womiak case in this court reveals that the petitioner herein was given leave to intervene as an appellee in the appeal prosecuted by the state in that case. Regardless of whether such granting of leave to intervene is effective as a means of bypassing the Court of Appeals, the fact remains that the petitioner is confined under an indictment that this court has held to be absolutely void. This is the classic example for the allowance of relief by habeas corpus. And the ends of justice would be accomplished more effectively by allowing such relief in this action, thus preventing the circuity of action which the majority opinion necessitates.

Matthias, J., concurs in the foregoing dissenting opinion.  