
    Potter, ex parte, v. Russell, Supt. of Dayton Workhouse.
    (No. 31716
    Decided May 25, 1949.)
    
      Mr. Louis C. Capelle, Mr. Robert E. Brooks and Mr. Robert L. Young, for petitioner.
    
      Mr. Herbert 8. Beane, city attorney, and Mr. Joseph P. Duffy, for respondent.
   By the Court.

George Potter, the petitioner for a writ of habeas corpus and discharge from custody, charges that he is unlawfully restrained of his liberty by the superintendent of the workhouse of the city of Dayton.

The petitioner alleges that he was convicted in the Municipal Court of the city of Dayton under an affidavit charging him with being an habitual offender and thereupon was sentenced to imprisonment for a term of three years. He complains that he was deprived of constitutional rights in that he was without the benefit of counsel when he entered a plea of guilty, and that the sentence to prison for three years for the commission of four misdemeanors imposed upon him cruel and unusual punishment.

The answer of the respondent admits the detention of the petitioner and alleges such detention is in compliance with a commitment issued by the judge of the Municipal Court of Dayton, and that respondent “continues to detain him until the sentence imposed by the trial court has been fully executed or until he be otherwise discharged according to law.”

It being disclosed that the three-year sentence, by virtue of which the respondent asserts the petitioner has been detained, has expired, it is ordered that he forthwith be discharged from confinement.

Petitioner discharged.

Matthias, Hart, Zimmerman, Stewart, Turner and Taft, JJ., concur.

Weygandt, C. J.,

dissents on the ground that the case clearly is moot.

This dissent is not based on a difference of opinion as to the law and the facts considered in the majority opinion. Bather, it is bottomed on the important additional undisputed facts developed during the course of the trial.

This action is addressed to the original jurisdiction of this court. This, of course, means that the ease has not been tried previously in a lower court. Hence, it is not here on any record made below, but it must be determined on the facts presented in this court.

The sole relief asked by the petitioner is that a writ of habeas corpus be granted and that he be released from custody under a certain three-year sentence. It is agreed that this sentence ended, on April 8 of this year and that the petitioner has not been held on this sentence since that date.

It is agreed, too, .that the petitioner is being held under other subsequent sentences imposed by reason of the fact that he has escaped from custody three times. No relief is asked from these sentences. Consequently, the allowance of this writ concededly will have no effect as to the sentences under which the petitioner actually is being held but it will merely order him released from serving a sentence which he already has served and from which he already has been discharged.  