#### In re Schanck.

(No. 3914

Decided June 24, 1946.)

*Mr'. Eldon H. Young,*for petitioner.

*Mr. Hugh 8. Jenkins,*attorney general, and *Mr. Henry 8. Zwolinski, contra.*

By the Court.

This is an action in *habeas corpus,*originating in this court, wherein the petitioner seeks his release from the Ohio State Penitentiary where he was confined under sentence by the Common Pleas Court of Summit county after being convicted of a felony commonly referred to as unarmed robbery, in *287violation of Section 12432, General Code. The petitioner took an appeal to the Court óf Appeals of the Ninth Appellate District, which affirmed the conviction and judgment of the trial court. An appeal was taken to the Supreme Court which also affirmed the conviction and judgment, the opinion being reported as *State*v. *Jones,*145 Ohio St., 136, 60 N. E. (2d), 654, to which reference is made for a detailed statement of the facts.

The issue presented, concisely stated, is: Was the offense charged committed by the petitioner, and if not, may the court order his release in *habeas corpus*proceedings? Section 12432, General Code, under which, the defendant was indicted provides as follows:

“Whoever, .by force or violence, or by putting in fear, steals and takes from the person of another anything of value is, guilty of robbery, and shall be imprisoned in the penitentiary not less than one year nor more than twenty-five years.”

The petitioner contends -an intent to rob or steal is an essential element- of a crime of- robbery, and that if the evidence does not show an indent to rob or steal, there cannot be a valid conviction of robbery. The petitioner relies on *Matthews*v. *State,*4 Ohio St., 539, which was decided in 1855 when the statute provided that the offense must be committed “with intent to rob or steal.” That case has no application to the instant case for the reason that the statute as amended no longer contains the words “with intent to. rob or steal.” In *State*v. *Sappienza,*84 Ohio St., 63, 95 N. E., 381, 34 L. R. A. (N. S.), 1118, Ann. Cas. 1912 B, 1109, the court, in commenting on the provisions of Section 12432, General Code, on page 70, says:

“Upon making proof, therefore, beyond reasonable doubt, that the defendant, with others, by force or violence, or by putting in fear, had stolen and taken from the person of the individuals named in.the indictment, *288against their will, something of value, the state had made its case one justifying a verdict of guilty, unless the defendant on his part produced evidence which exculpated him. *The state did not need to go into the question of intent on the part of the robbers because of the universal rule, as a presumption of fact, that the natural and probable consequences of every act deliberately doné were intended by'the person who did them.”*(Emphasis ours.)

By stipulation the record of the trial court has been introduced as evidence in the case at bar. This record discloses that this petitioner when put on trial, under cross-examination, testified as to facts, and made admissions, which supported the charge of the state, and in proof of all the elements of the offense charged in the indictment, with the possible exception of a criminal intent. With respect to the proof of a criminal intent, we find the law to be that a person is presumed to intend the natural and probable consequences of his voluntary act. The petitioner did not deny that he helped to plan the act which constituted robbery, and was near the scene when the act took place and fled the scene of the crime in an automobile with the other participants.

The trial court properly charged the jury relative to “intent.” Whether the petitioner committed the act with a criminal intent is a factual question which was properly submitted to the jury and resolved against the petitioner. The petitioner was stated to be an aider and abettor to the robbery. The trial court properly charged the jury in regard to the application of the provisions of Section 12380, General Code. There was evidence to support the .conviction and judgment of the court.

Error, if any appears, could and should have been presented to the reviewing courts on appeal. This *289proceeding in *habeas corptis*cannot be made a substitute for an appeal. *Ex parte Lindway,*132 Ohio St., 473, 9 N. E. (2d), 1; *Ex parte Elicker,*117 Ohio St., 500, 159 N. E., 478. Relief can be granted to the petitioner in this procee'ding only if this court should find that the conviction and judgment of the trial court were void. *Ex parte Shaw,*7 Ohio St., 81, 70 Am. Dec., 55; *State, ex rel. Kelly,*v. *Frick,*14 Ohio Law Abs., 355.

In the case at bar, no question is raised as to the jurisdiction of the trial court over the subject matter or the person of the petitioner; neither is there any question raised as to the legal sufficiency of the indictment in properly charging a crime under the statute. The complaint of the petitioner relates to a factual-matter which was properly submitted to the jury in the trial court. In this proceeding, we are without authority to open up a factual matter for redetermination. Neither the motive for the commission of the act nor mitigating circumstances, which we admit exist, are pertinent or persuasive in the determination of the issue in this proceeding. We fail to see wherein the conviction and judgment of the trial court are void.

The writ will be denied.

*Writ denied.*

Hobnbeck, P. J., Wiseman and Miller, JJ., concur.