William O. Douglas

“ Ohio
Mr. Justice DOUGLAS, concurring.
Appellant was convicted of possessing obscene matter with intent to sell it under Ohio Statutes § 2905.34. On May 25, 1960, he was 'sentenced to an indeterminate period of not less than one year nor more than seven years and to pay costs of this prosecution.' The sentence was suspended pending appeal in the Ohio courts. On January 17, 1962, the Supreme Court of Ohio reversed the Court of Appeals, which had reversed appellant's conviction, and on February 2, 1962, ordered the trial court's judgment executed. ”

“ In this case the trial court had no discretion concerning the matter of costs. Under Ohio law costs are automatically assessed against a convicted felon. See Ohio Revised Code, §§ 2949.14, 2949.15. The costs were not 'legally assessable' if the conviction was invalid. ”

“ Intertype Corp. v. Clark-Congress Corp., 7 Cir., 249 F.2d 626, 628 (1957) , the existence of such a judgment has been held not to confer jurisdiction to inquire into the merits of the original controversy, Smith v. Indiana, 191 U.S. 138, 149, 24 S.Ct. 51, 52, 48 L.Ed. 125 (1903) ; Davis v. Preston, 280 U.S. 406, 408, 50 S.Ct. 171, 172, 74 L.Ed. 514 (1930) . Accordingly, the motion to substitute the administratrix as a party should be denied, the appeal dismissed and the case remanded to the Supreme Court of Ohio for such proceedings as may be appropriate under state law. ”