Criminal law — Conviction and sentence to one-to-fifteen-year term for burglary — Conviction and sentence to 15-year term as habitual criminal — Section 13744-1, General Code — Previous sentence not vacated by trial court — Section 13744-3, General Code — Habeas corpus not substitute for appeal — Petitioner in lawful custody of warden of Ohio penitentiary — Habitual criminal act constitutional.
BY THE COURT.
The judgment of the Court of Appeals is affirmed.
The petitioner is not unlawfully restrained of his liberty by the sentence imposed on September 17, 1946, which commitment is not challenged in this proceeding. He is therefore in the lawful custody of the warden.
The sentence of October 23, 1946, may be voidable but it may not be attacked by habeas corpus as a substitute for appeal. Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec., 55; Ex parte Hagan, 25 Ohio St. 426; In re Allen, 91 Ohio St. 315, 110 N.E. 535.
The habitual criminal act is constitutional. Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18; McDonald v. Massachusetts, 180 U.S. 311, 45 L. Ed., 542, 21 S. Ct., 389, affirming McDonald v. Commonwealth, 173 Mass. 322, 53 N.E. 574, 73 Am. St. Rep., 293.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.