Ohio Court of Appeals, 1949

State ex rel. Tucker v. Alvis

Ohio Court of Appeals · Decided July 6, 1949 · Hornbeck, Miller, Wiseman

55 Ohio Law. Abs. 285; 89 N.E.2d 328; 1949 Ohio App. LEXIS 847

Cases that cite this one

4 later published cases cite this decision.

United States v. Mark Douglas Odom, United States of America v. Joyce Geraldine Beach, United States of America v. Benny Carol Dyson (4th Cir. 1984)
Harbit v. Harbit (Miss. Ct. App. 2009)
State v. Paolella (Conn. 1989)
Thomas v. DAD'S ROOT BEER, ETC. (Or. 1960)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION

By THE COURT.

This is an application for a writ of habeas corpus. The record discloses that on the 24th day of April, A. D. 1946, the *286plaintiff was found guilty of murder in the first degree with a recommendation of mercy. The ground relied upon by the plaintiff for the relief sought is that none of the witnesses who testified against him at the trial was sworn. , The plaintiff testified that during the course of the trial his counsel questioned whether or not the witnesses had been sworn and the prosecutor answered in the affirmative. The plaintiff now insists, however, that none of the witnesses was sworn and for this reason he was denied due process of law and that he is entitled to his release. When .a defect such as alleged here is known at the time, the defect must be taken advantage of at once and the failure to do so is such acquiescence in the -testimony as will preclude objection after the verdict. See 28 R. C. L. Section 177, page 585. Since the ground upon which the relief is sought is inadequate it will not be necessary for us to pass upon the truth of the charge made.

The application will be denied.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur

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