
    Copelan, Chief of Police, v. McHenry.
    (Decided July 27, 1931.)
    
      Mr. John D. Ellis, city solicitor, and Mr. Francis T. Bartlett, for plaintiff in error.
    
      Mr. Robert Fosdiclc and Mr. Harry F. Kumler, for defendant in error.
   Ross, P. J.

This case comes into this court on error from the court of common pleas of Hamilton county, Ohio, wherein a writ of habeas corpus was granted. The chief of police of the city of Cincinnati, William Copelan, asserts that such action of the court was erroneous.

The defendant in error, William McHenry, alias James Brandon, escaped from the Cincinnati workhouse. He was apprehended and tried upon a warrant stating that the defendant in error “did then and there unlawfully escape from the Cincinnati workhouse, his the said William McHenry, alias James Brandon’s sentence not having expired, contrary to and in violation of Section 12840 of the General Code of Ohio.”

Presumably he was sentenced to the workhouse upon the conclusion of this trial, for a writ of habeas corpus was granted by the common pleas court of Hamilton county; the sentence to pay a fine and costs held void, no fine being authorized for escape from the workhouse.

Thereafter the defendant in error was arrested upon a second warrant, charging as follows: That the defendant in error “did unlawfully, knowingly and willfully escape from the said Cincinnati workhouse, without authority and before the said fine and costs had been paid, secured to be paid, or he had been credited at the rate of $1.50 per day so as to satisfy said fines and costs, contrary to and in violation of Section 12840-1 of the General Code of Ohio.”

This case was submitted to this court upon a bill of exceptions, the pertinent portion of which, being brief, we quote as follows:

“The respondent, William Copelan, Chief of Police, City of Cincinnati, produced the body of petitioner and for his return produced an original warrant of arrest issued by the Municipal Court of the City of Cincinnati (Exhibit ‘B’ attached hereto) commanding him to arrest said petitioner on the charge of escape from workhouse before fine and costs paid, an offense under Section 12840-1 of the General Code of Ohio, by virtue of which warrant of arrest he was detaining petitioner.
“No witnesses were sworn and no testimony had.
“It was stipulated between counsel for petitioner and counsel for respondent that the petitioner had, before another judge of this court, been granted a writ of habeas corpus and had been ordered discharged from the Cincinnati workhouse, to which he had been committed for non-payment of a fine and costs adjudged against him in the Municipal Court of Cincinnati in Case No. 2300 of that court (Exhibit ‘A’ attached hereto) wherein petitioner was charged with escaping from workhouse. The said discharge was ordered because, on its face, the commitment showed a void sentence in that a money fine was not authorized by law as a penalty for the offense of escaping from workhouse. The court in the instant proceeding held that the former discharge above cited, was not res adjudicata as to the points raised in the instant proceedings for a writ, but did hold that the warrant of arrest proffered by respondent in this case charged the same offense as had been charged on case No. 2300, supra, and that, therefore, the detention under the warrant so proffered was illegal and ordered the discharge of the petitioner.”

Section 12840 is as follows: “Whoever, having been committed to a workhouse, escapes or attempts to escape therefrom, shall be imprisoned in such workhouse not more than double the term for which he had been originally sentenced. Unless the former sentence has expired, such sentence shall commence from and after the expiration of the former sentence. The court which originally sentenced him shall have jurisdiction concurrently with the court of common pleas in the county in which such workhouse is situated.”

Section 12840-1, General Code, provides: “Whoever, having been committed to a workhouse in default of payment of fine and costs, escapes or attempts to escape therefrom, shall be sentenced to .such workhouse for a period of not less than ten nor more than three hundred and sixty-four days. Such sentence shall commence from and after the expiration of the imprisonment on account of such default, but credit shall be given against such imprisonment for any payment made on said fine and costs. The court which originally assessed the fine and costs shall have jurisdiction concurrently with the court of common pleas in the county in which such workhouse is situated.”

Upon these facts we hold that the provisions of Section 12183, General Code, apply. This section is as follows: “A person who is set at large upon a writ shall not be again imprisoned for the same offense, unless by the legal order or process of the court wherein he is bound by recognizance to appear, or other court having jurisdiction of the cause or offense. A person who knowingly, contrary to the provisions of this chapter, recommits or imprisons, or causes to be recommitted or imprisoned, for the same offense, or pretended offense, a person so set at large, or knowingly aids or assists therein, shall forfeit to the party aggrieved five hundred dollars, notwithstanding any colorable pretense or variation in the warrant or commitment.”

The offense charged in both cases was escape from the Cincinnati workhouse. The fact that one warrant charged “his sentence not having expired” and the other charged “before his fine and costs had been paid,” etc., we consider merely “colorable pretense or variation.”

The judgment of the court of common pleas of Hamilton county is affirmed.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.  