
    Perry, Appellant, v. Maxwell, Warden, Appellee.
    (No. 37996 —
    Decided December 26, 1963.)
    
      Mr. Henry Clay Scott, for appellant.
    
      Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for appellee.
   Per Curiam.

The Associates Loan Company, a legal entity, may have been the owner of U. S. currency and thus subject to theft thereof. The loan company, an inanimate legal entity, could not have been put in fear, but it may be implied that a human person acting for the entity may have been put in fear. A corporation acts through its agents, human persons. The indictment was sufficient to apprise petitioner of the crime with which he was charged, and to which he pleaded guilty.

After a plea of guilty, judgment of conviction, and sentence by a court having jurisdiction of the subject matter and of the person of the defendant, such judgment of conviction is binding as between the state and the defendant and can be set aside only by a direct and not a collateral attack. Mills v. Maxwell, Warden, 174 Ohio St., 523. See State v. Wozniah, 172 Ohio St., 517, at 522 and 523.

Petitioner places reliance on the case of State v. Cimpritz, 158 Ohio St., 490. In that case, the accused did not plead guilty but attacked the indictment at his earliest opportunity, by motion to quash, and appealed from the judgment of conviction.

Petitioner’s remedy, if any, was by appeal, not by habeas corpus. Bolin v. Maxwell, Warden, 173 Ohio St., 517.

“Within 30 days after judgment and sentence,” one determined by such judgment to be guilty of a crime has a right to appeal from that judgment of conviction. Section 2953.05, Revised Code.

On such appeal, the one so convicted may raise any valid objection which he may then have to that judgment of conviction. Of course, such one’s previous actions before that appeal may have been such as to prevent his successfully attacking that judgment of conviction on appeal. See State v. Glaros, 170 Ohio St., 471.

After those 30 days from judgment and sentence, “such appeal may be taken only by leave of the court to which the appeal is taken.” Section 2953.05, Revised Code.

Where a valid reason is advanced by an appellant for not instituting such appeal more promptly and where apparently valid objections to such judgment of conviction are raised thereby and where it does not appear that appellant’s previous actions have been such as to prevent his raising of those objections, the Court of Appeals will, in the exercise of its discretion, grant a leave for such appeal.

Thus, in the instant case, petitioner had an adequate remedy either in the trial court or by way of appeal to the Court of Appeals to make the same attack on the indictment which he now is endeavoring to make in this habeas corpus action. In such an instance, petitioner will not be permitted to make that attack in a habeas corpus proceeding.

Where no reason is advanced by an appellant as to why an appeal could not reasonably have been instituted “within 30 days after * * * judgment and sentence,” the Court of Appeals may, in the exercise of its discretion, deny leave to appeal. In doing so, the court need advance no reason for its action. The burden is on the one appealing to show affirmatively a right thereto.

The fact that the Court of Appeals did deny petitioner’s previous application for leave to appeal in such an instance does not indicate that petitioner has not had an adequate legal remedy to raise the questions which he now seeks to raise in this habeas corpus proceeding.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Taft, C. J., Zimmerman, Matthias, O’Neill and Griffith, JJ., concur.

Herbert, J., dissents on authority of State v. Cimpritz, 158 Ohio St., 490.

Gibson, J.,

dissenting. Until November 13, 1963, when this court in State v. Perry, No. 38264, dismissed the petitioner’s appeal as of right and overruled his motion for leave to appeal from the judgment of the Court of Appeals denying his motion for leave to appeal, I saw no reason to deviate from the recent decisions of this court holding that the only post-conviction remedy in Ohio is by appeal and not by habeas corpus. Although such rule deviates from the traditional role of habeas corpus, the implicit guaranty that all such petitioners will be granted leave to appeal in the Court of Appeals, unless they are clearly not so entitled, is, in my opinion, an adequate reason to follow this court’s recent decisions.

The only basis upon which the present rule regarding the post-conviction remedy of habeas corpus can rest is that the remedy by appeal is an adequate legal remedy. A remedy is adequate, however, if, and only if, such remedy is available. The instant case clearly exemplifies the inadequacy of the rule. This petitioner filed a motion in the Court of Appeals seeking leave to appeal. Without an opinion on the merits, the Court of Appeals found such motion not well taken, and this court, also without opinion, refused to review the soundness of such denial. In the instant proceeding it is said that petitioner’s remedy is not by habeas corpus but by the very appeal he has tried to obtain and which has been denied him. Thus, petitioner now is in the position that he can never have a review on the merits of his contentions.

It can be argued, of course, that the fact that petitioner’s motion for leave to appeal in case No. 38264 was overruled does not show that he has no adequate legal remedy. Such an argument is premised on the fact that where, as here, an appeal is not taken within the 30-day period prescribed by Section 2953.05, Revised Code, the granting of such a motion lies within the discretion of the Court of Appeals. Obviously, such discretion is not unbridled but must be exercised in the interest of sound administration of justice.

It may be that here the Court of Appeals did not abuse its discretion. The record in case No. 38264 does not indicate, however, whether consideration was given to the merits of petitioner’s contention that the indictment, under which he is confined, was void, and, therefore, that he is unlawfully restrained of his liberty. Consequently, this court could not, with any fair degree of certainty, determine whether there was an abuse of discretion. The various presumptions relating to the regularity of judicial proceedings ought not be invoked, where one’s liberty is at stake, to determine that his contentions were reviewed. To prevent such an uncertain situation, the intermediate court in granting or denying a motion for leave to appeal should state, briefly at least, the reasons for its action so that this court may adequately determine whether an abuse of discretion has occurred.

In conclusion, if the petitioner has no right of appeal, as he clearly has not, then he has no adequate legal remedy. In my opinion, he is entitled in this case to a determination of this petition for habeas corpus on the merits as to whether the indictment, under which he is confined, was void and, if so, whether he is unlawfully restrained of his liberty.  