#### Hamilton, Appellant, *v.*Russell, Supt. of Dayton Workhouse, Appellee.

(No. 2012

Decided December 27, 1948.)

*Mr. Louis C. Capelle,*for petitioner, appellant.

*Mr. Herbert S. Beane,*city attorney, and *Mr. Cecil E. Edwards,*for respondent, appellee.

Hornbeck, J.

This appeal is from a judgment of the Common Pleas Court denying petitioner a discharge from custody on trial had and final hearing in a habeas corpus proceeding.

We do not have the petition, but it may be assumed that it is in the usual form. The claim of petitioner is that he was not properly charged with an offense and that he was improperly sentenced and committed. The briefs of the parties and the arguments of counsel were directed to one charge and one commitment. *380The record contains two charges and two commitments. If the petitioner is properly held on either, the writ must be denied.

One charge is that on or about January 7, 1946, petitioner was found within the city limits of Dayton at a place there named in a state of intoxication. 'There is no judgment and sentence on this charge but there is a commitment in regular form directed to respondent, wherein it is recited that the petitioner was charged and found guilty of intoxication. The sentence is for a number of days from the 9th of January 1949, the 9 being written over a 6, and to pay a fine of $100 and costs. The commitment was dated January 9, 1946.

Inasmuch as there is no order and sentence of the trial judge upon which the commitment could issue, and also because, if the petitioner had been properly committed, his sentence would have been served working out his fine and costs at the per diem allowance, we may properly determine that petitioner should not legally be held under this commitment.

We then give consideration to the ground upon which the cause was presented to the trial court and urged here, namely, the invalidity of the other proceedings by which the petitioner is now being held by the respondent.

On this claim, the petitioner was charged in the usual form of violating Section 926 of the Ordinances of the city of Dayton, in that he unlawfully loitered at the place named, in the city of Dayton. Then followed this further subject matter:

> “The said Paul Hamilton, having been three times convicted, sentenced and imprisoned in the workhouse of the city of Dayton, Ohio, for offenses committed in the state of Ohio, to wit: November 11, 1944, Case No. 20276, loitering; September 2, 1945, Case No. 30266, *381loitering; December 12, 1943, Case No. 4313, loitering, contrary to Section 4131 of the General Code of Ohio,” etc.

The judgment entry on that charge recites that “the cause came on to be heard upon the issue joined and tlie evidence ** * **and the court * * * does find the defendant guilty of loitering in violation of the habitual offender act as he stands charged in the affidavit filed herein.” The commitment recites the trial and conviction of petitioner of unlawfully loitering, as charged in the affidavit with the addenda as carried therein, and the further recital that he had been sentenced to be imprisoned in the workhouse in the city of Dayton for a term of three years from .January 9, 1946.

Several errors are assigned. First, that Section 4131, General Code, defining an habitual offender, does not constitute a crime. Second, that the plaintiff did not waive a trial by jury in writing. Third, that Section 4131, Genera] Code, violates the Constitution of the state of Ohio in that it provides for cruel and inhuman punishment.

Upon the second and third assignments we find against the claim of petitioner. We discuss the first as we consider the general proposition whether, upon the proceedings appearing, the trial court erred in refusing to hold that petitioner was illegally restrained of his liberty. Section 4131, General Code, so far as pertinent, provides:

> “Every person who, after having been three times convicted, sentenced and imprisoned in any workhouse * * * for offenses committed in this state, whether in violation of law or ordinance, shall be convicted of a fourth misdemeanor, whether committed in violation of an ordinance of a municipality or law of the state, punishable by imprisonment in any workhouse within this state, shall, upon conviction for such *382offense be held and deemed to be an habitual offender and shall be imprisoned in a workhouse for a period of not less than one year nor more than three years- * * *”

We are cited to *In re Moreno,*83 Ohio App., 54, 82 N. E. (2d), 325, the third paragraph of the syllabus of' which reads:

> “Section 4131, General Code, does not create a separate, distinct crime, for which one may be sentenced to the workhouse, but, on the contrary, merely attaches an additional penalty to the commission of a misdemeanor, where the perpetrator thereof has been three times previously convicted of misdemeanors and. sentenced to the workhouse. ”

The decisive question in that case did not especially relate to the proposition of law set out in the third paragraph of the syllabus. We agree that the section must be considered in conjunction with the other offenses therein set out, and may not be given application unless and until it is charged and proven that a defendant has been three times convicted and imprisoned in a workhouse, and further, charged and proved that a fourth misdemeanor has been committed, carrying the same penalty.

Testing the affidavit in this respect, we are of opinion that it conforms m substantial averments to the law. It is true that the affidavit is concluded with the charge contrary to Section 4131, General Code, but that part of the affidavit which goes before is sufficient, in that it charges a fourth offense under an ordinance punishable by imprisonment in a workhouse, and also that the defendant has been three times convicted, sentenced and imprisoned in the workhouse of the city of Dayton and details the dates, the numbers of the cases and the charges. The affidavit incorporates all. *383the essentials requisite, if proven, to give the court authority to impose sentence, as provided in Section 4131, General Code.

The order reciting the trial and conviction of the defendant is inadequate in particulars. First, it adjudges that, the defendant is found guilty of loitering in violation of the habitual offender act as he stands charged in the affidavit. There is no such charge, nor can it be said that because of the finding alone that the defendant is guilty of loitering, there has been a violation of the habitual offender act. It is material and essential to the judgment order that it recite a finding of guilt of the charge of loitering, and a further finding that the defendant had three times theretofore been convicted, sentenced and imprisoned in the workhouse of the city of Dayton, Ohio, setting out the specific offenses as charged.

There is another infirmity in the record of the proceedings as made up in the bill in that it does not carry any sentence of the court which is an essential to any commitment. That, there must be such a pronouncement, and that it must be carried into a proper written order of the court, is manifest. Section 13451-13, General Code. To be a valid sentence it must in and of itself be so definite and certain as to advise the prisoner and officer charged with the execution of the sentence of the time of its commencement and termination. The commencement and termination thereof must be definitely fixed in the judgment. 12 Ohio Jurisprudence, 699, Section 681, and cases cited.

It may be that there is a judgment order and sentence which succeeded the order finding the defendant-guilty as charged. Such an entry would be appropriate following the finding of guilt, either in the same or another entry, but if there is such an order it is not *384carried into the bill of exceptions and we can not assume that it was entered as a part of the proceedings in the cause.

In fairness to the trial judge, it should be said that, in probability, our final reason for the granting of the writ of habeas corpus, and the infirmity in the proceedings committing the petitioner, was not urged and probably not presented in argument at the original hearing. Inasmuch, however, as the invalidity of the proceedings upon which the commitment was issued is so material, it would be an injustice to the petitioner upon this record to refuse him the relief prayed.

An order of discharge from custody should have been granted as prayed and the judgment of the Common Pleas Court denying its issuance was erroneous and prejudicial to the rights of the petitioner. Judgment will be reversed, order as prayed may issue and the cause will be remanded.

*Judgment reversed.*

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

On Application for rehearing.

(Decided January 18, 1949.)

By the Court.

This cause is submitted on application of respondent for a rehearing, based upon the claim that certain records in the Police Court of the city of Dayton, which were not before this court, would require a different judgment. The statement in the memorandum attached to the motion clearly discloses that the evidence upon which respondent relies was not before this court or the trial court. The trial court in the first instance, and this court upon review on questions of law, were restricted in their considera*385tion of the facts to the evidence developed by testimony taken or presented by stipulation at the trial. We know of no procedure by which the evidence suggested could be brought upon the record at this late date..

The application will be denied.

*Application denied.*

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