Hobert Frank Flowers, the defendant below and appellant herein, was before the trial court on March 23, 1967, upon an information charging him with a violation of R. C. 2907.10. Defendant waived prosecution by indictment, representation by counsel, and a reading of the information in open court. He entered a plea *Page 112 of guilty and was sentenced. No direct appeal was prosecuted from the judgment.
The information filed against him, omitting the formal parts, reads as follows:
"* * * that Hobert Frank Flowers, Jr., on the 18th day of March 1967, at the County of Pickaway aforesaid, did unlawfully, maliciously and forcibly break and enter Tinks Tavern, Route No. 3, Circleville. Ohio in the night season with intent to commit larceny therein."
On January 6, 1970, without counsel, the defendant, filed a petition for post-conviction relief. To the petition, a demurrer was interposed. The trial court entered findings of fact and conclusions of law, denied relief and dismissed the petition. This appeal, without counsel, was instituted by defendant from such denial.
It should be noted at the outset that I am in complete agreement with the disposition of grounds two through eight by the trial judge below and my colleagues herein. My concern here is with ground one, which states:
"1. The bill of information in case number 7609 is insufficiently drawn to charge a crime under the laws of the state of Ohio."
The demurrer below placed into issue the sufficiency, in law, of such charge.
The argument advanced by defendant is that the information states no offense because it contains no allegation of "uninhabited building."
The trial court and my colleagues herein are of the view that the identification of the place entered as "Tink's Tavern" carries with it the implication that it is a tavern and, hence, is a building and therefore the information charges a crime under R. C. 2907.10. While I do not disagree with the conclusion that a building is implied in the information, I do disagree that it charges a crime.
The glaring defect in this information is that it lacks allegations laying ownership of the building in anyone. The offense of burglary can only be committed with respect to another's property. An indictment lacking such allegation of ownership is fatally defective and charges no *Page 113 offense. Wilson v. State, 34 Ohio St. 199. It is unnecessary that ownership be alleged in the fee owner, the name of the person in possession being sufficient. State v. Johnson, 120 Ohio App. 191. The most that can be said for this information is that the term "Tink's Tavern" is descriptive of the building entered but only that. The plea of guilty, without counsel, cannot be considered a waiver of such defect.
The next question which must necessarily follow is whether such defect is cognizable in a post-conviction relief proceeding which reaches errors only of a constitutional nature. R. C.2953.21; State, ex rel. Turpin, v. Court of Common Pleas, 8 Ohio St.2d 1. In my view, the omission here of an essential allegation of the offense is of constitutional dimension.Fouts v. State, 8 Ohio St. 98; Harris v. State, 125 Ohio St. 257; State v. Wozniak, 172 Ohio St. 517. The substance of the holdings in the cited cases is that Section 10, Article I, Ohio Constitution, which states that no person shall be held to answer "unless on presentment or indictment of a grand jury," requires the grand jury to return an indictment setting forth all material elements of the offense.
The Ohio Supreme Court in State v. Cimpritz, 158 Ohio St. 490, held that where an essential element is missing from an indictment, the courts lack jurisdiction of the subject matter and the indictment may be attacked either collaterally or on appeal. Thereafter, the decision was interpreted to restrict such collateral attack only before judgment. State v.Wozniak, 172 Ohio St. 517. The court reasoned that after judgment the same was binding on the defendant since "the court rendering it had jurisdiction of the person of the defendant and also jurisdiction of the subject matter; i. e., jurisdiction to try the defendant for the crime for which he was convicted.
In view of the above, the conviction herein would be voidable only and not void within the concept of those terms in State v.Perry, 10 Ohio St.2d 175. The doctrine of res judicata set forth in State v. Perry, supra, is inapplicable here for the reason of lack of counsel. *Page 114
It may well be argued that the unrepresented petitioner did not give the proper reason why the information upon which he was charged was defective and relief should be denied on that ground. In my view, this would be most inappropriate and not in keeping with the spirit and purpose of the post-conviction remedy act, which is to correct an infringement of constitutional rights. See footnote 1, State v. Perry, supra.
I would reverse.