For the errors above stated the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded. SHOHL, P. J., and CUSHING, J., concur.

THOMAS, WARDEN, v. CowDREY.

Court of appeals — Jurisdiction in error - Habeas corpus - Writ lies, when Void and voidable judgments-Collateral attack

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- Conviction of second degree murder - Indictment for first degree - Homicide by poisoning.

1. A judgment of the court of common pleas in a habeas corpus case, discharging the petitioner, is reviewable by the court of appeals in a proceeding in error.

2. A writ of habeas corpus will not be allowed in a case where the petitioner is held under a judgment which is merely voidable. Habeas corpus is an appropriate remedy only in cases where the judgment is void.

3. Where an indictment charges murder in the first degree by the administration of poison, and a verdict of murder in the second degree is returned by the jury, and sentence is imposed by the court thereon, such verdict and sentence are not void and cannot be collaterally attacked in a habeas corpus proceeding. (Decided March 8, 1920.)

ERROR: Court of Appeals for Franklin county.

Mr. John G. Price, attorney general; Mr. Isaac C. Baker, prosecuting attorney of Butler county, and Mr. Ben A. Bickley, special counsel, for plaintiff in error.

Mr. James C. Nicholson, for defendant in error.

KUNKLE, J. This is an action in habeas corpus. Defendant in error, William Harrison Cowdrey,

Thomas v. Cowdrey.

[13 Ohio seeks to obtain his release from the Ohio Penitentiary. The habeas corpus proceeding was brought in this county. Defendant in error, Cowdrey, was indicted in Butler county, Ohio, and charged with murder in the first degree. The indictment was in three counts and charged murder in the first degree by the administration of poison.

Defendant in error was convicted of murder in the second degree under the third count of the indictment and was sentenced to life imprisonment in the Ohio Penitentiary.

The third count of the indictment charged that the defendant "Did unlawfully, purposely and of deliberate and premeditated malice with the intent one Lorel Wardlow unlawfully, purposely and of deliberate and premeditated malice and by means of poison to kill and murder did give and administer a large quantity of poison called arsenic, * * * which arsenic was put in water," etc.

After being convicted by a jury in the Butler county court of common pleas defendant in error Cowdrey filed a motion in such court asking for his discharge, and also filed a motion for a new trial.

Both motions were overruled, and, as above stated, defendant in error was sentenced to the Ohio Penitentiary for life.

It was admitted by counsel in the argument of this case that the judgments of the lower court upon such motions were affirmed by the court of appeals of Butler county; that no bill of exceptions was filed in such court; and that the supreme court refused a motion for leave to file a petition in error.

The court of common pleas of Franklin county sustained the petition in habeas corpus and ordered

defendant in error discharged from the Ohio Penitentiary.

A petition in error has been filed in this court for the purpose of reviewing such judgment, and the order discharging defendant in error from the Ohio Penitentiary has been suspended pending the hearing and determination of this proceeding in

error.

A motion has been filed in this court to quash the proceeding in error upon the ground that this court has no jurisdiction to review a judgment of the court of common pleas in a habeas corpus proceeding.

It has been held in the case of Henderson v. James, Warden, 52 Ohio St., 242, that a judgment of the court of common pleas in a habeas corpus proceeding is reviewable on error, and we think such judgment is also clearly reviewable under Section 6, Article IV of the Constitution as amended in 1912.

The motion to quash will, therefore, be overruled.

The next question for consideration relates to the jurisdiction of the common pleas court of Franklin county, Ohio, in the habeas corpus proceeding.

It is clearly settled in this state that the writ of habeas corpus cannot be made a substitute for a proceeding in error.

In the case of Ex parte Shaw, 7 Ohio St., 81, the first paragraph of the syllabus is as follows:

"A habeas corpus can not be used as a summary process to review or revise errors or irregularities in the sentence of a court of competent jurisdic

tion. Imprisonment under a sentence can not be unlawful, unless the sentence is an absolute nullity. If clearly unauthorized and void, relief from imprisonment may be obtained by habeas corpus; if avoidable, a writ of error is the appropriate remedy."

See also Ex parte Van Hagan, 25 Ohio St., 426. In the case of In re Winslow, 91 Ohio St., 328, the court in conclusion says:

"If the court in sentencing him did not act under this statute, but sentenced him under another statute, which for the purposes of this case may be conceded to have been invalid, the sentence was erroneous and voidable but not void. The error was not a jurisdictional one and it cannot be reviewed in a proceeding in habeas corpus."

See also In re Allen, 91 Ohio St., 315; Bly v. Smith, Sheriff, 94 Ohio St., 110; State, ex rel. Conners, v. DeMuth, 96 Ohio St., 519; In re Application of Rosenthal, 25 C. C., N. S., 383, and McGorray, Sheriff, v. Sutter, 80 Ohio St., 400.

From a consideration of the authorities cited we are of opinion, that, where the complainant is detained under a sentence which has been imposed by a court, a writ of habeas corpus cannot be allowed unless there is an absolute want of jurisdiction upon the part of the court imposing such

sentence.

For errors or irregularities which may have occurred in the proceedings, in a court having jurisdiction, the law provides a remedy for the correction of such errors or irregularities by a proceeding in error, not by a proceeding in habeas corpus.

Where error is prosecuted from the judgment of the lower court the reviewing court may set aside the conviction in a proper case and remand the case for new trial or for a new sentence.

In a habeas corpus case, if the writ is allowed, the necessary result would be to discharge the accused.

The courts, particularly in our own state, have, therefore, strictly limited the jurisdiction in a habeas corpus case so as to prevent an improper application of the writ in cases where the accused should be retained for a new trial, or be resentenced instead of being discharged.

In the case at bar it is conceded that the court of common pleas of Butler county had jurisdiction of the person of the defendant in error and that there was a valid indictment against defendant in error of murder in the first degree.

This conferred upon the court of common pleas of Butler county jurisdiction of the subject-matter involved in the indictment.

It is claimed by counsel for defendant in error that the indictment upon which Cowdrey was tried and convicted gave the Butler county court of common pleas no jurisdiction except to convict or acquit the defendant in error of murder in the first degree, and that the verdict of murder in the second degree, and the judgment and sentence thereon of the court of common pleas of Butler county, were not merely voidable but were absolutely void. The indictment was based upon Section 12400, General Code, which provides as follows:

"Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or