Commonwealth v. Dowdican's Bail

Citation115 Mass. 133
PartiesCommonwealth v. John Dowdican's Bail
Decision Date19 May 1874
CourtUnited States State Supreme Judicial Court of Massachusetts

March 3, 1874;

Suffolk. March 3, 1874. Contract on four recognizances against Charles A. Peterson and William Child, bail of John Dowdican. The questions of law presented in each case being similar, they are reported together. Trial in the Superior Court, without a jury, before Putnam, J., on agreed facts in substance as follows:

The original action in which the first recognizance was given was a complaint against John Dowdican, for maintaining a liquor nuisance. In this case, the following order was made April 24, 1868: "Chapter 86 of General Statutes having been repealed, this case is now laid on file." The case was accordingly laid on file at that date without costs. The complaint in this case was not under the Gen. Sts. c. 86, but under c. 87, which has never been repealed.

The original action in which the second recognizance was given was an indictment against said Dowdican, for being a common seller of intoxicating liquor. This case was laid on file June 5, 1867, and the costs were paid.

The original action in which the third recognizance was given was an indictment against said Dowdican, for maintaining a liquor nuisance. This also was laid on file June 5, 1867, and the costs were paid.

In the orders laying the second and third cases on file, Vose, J certified that he was satisfied of the truth of the defendant's affidavit, that the times covered by the indictments in said third and fourth cases had been also covered by another indictment on which the defendant had been found guilty and sentenced.

The proceeding in which the fourth recognizance was given, was an indictment for assault and battery. In April, 1868, the party injured filed an acknowledgment of satisfaction for all damages, and the costs were paid January 20, 1869; and in March, 1869, the case was laid on file.

An indictment was found at January term, 1873, against said Dowdican, for unlawfully receiving stolen goods, upon which he was found guilty.

At April term, 1873, each of the first four cases was brought forward by order of the court on motion of the district attorney, and the defendant ordered to enter into a recognizance, and failing to do so was committed.

On May 12, 1873, Dowdican, and the said Peterson and Child, appeared in the Superior Court, and recognized in each of said four suits, the former as principal, and the two latter as sureties. It further appeared that at April term, 1873 Dowdican's attorney had filed a motion in arrest of judgment, which had not been passed upon, and that on May 28, 1873, said attorney being in court, demanded a decision upon said motion, but none was given. The district attorney thereupon requested the presence of the defendant in court for the purpose of moving for sentence; and the defendant was ordered to be called, and not appearing was defaulted.

On these facts the presiding judge, at the request of the parties, reported the case to this court.

Judgments for the Commonwealth.

C. R. Train, Attorney General, for the Commonwealth.

G. W. Searle, for the defendants.

Gray, C. J. Wells & Endicott, JJ., absent. Ames & Devens, JJ., absent.

OPINION
Gray

The questions of law presented by the record in this action are not properly before us. The Superior Court has been authorized by the legislature to send up questions of law to this court in the form of a report, only in cases in which a verdict has been, or, if the trial should be completed, would be, rendered When the case is submitted to the Superior Court on a waiver of a jury trial, on the award of an arbitrator, or on an agreed statement of facts, that court is required to hear and determine it; and the jurisdiction of this court is purely appellate, after a decision below, and not advisory, by way of instructions to that court in advance how to perform the duty which the law has imposed upon it. Gen. Sts. c. 114, § 10; c. 115, §§ 6, 7. St. 1869, c. 438. Lincoln v. Parsons, 1 Allen 388. Bearce v. Bowker, ante, 129. Hogan v. Ward, ante, 130 note.

In some cases in the books, this rule, not having been insisted on by either party, has been overlooked by the court. But the number of cases irregularly transmitted to this court without any decision below has lately increased so much, to the serious embarrassment of the performance of the appropriate duties of this court as a court of error, as to demand a strict and vigilant adherence to the statutes by which the jurisdiction of both courts is defined.

Report dismissed.

The case being submitted to the Superior Court on the above facts, Putnam, J., ordered judgment for the Commonwealth, and the defendants appealed.

G W. Searle, for the defendants, contended that the effect of an order to lay an indictment on file was the same as a sentence, final judgment, or nolle prosequi; that the circumstances that the orders, laying the three last indictment on file, also ordered the payment of costs, necessarily ended the case; and that under the Gen. Sts. c. 171, § 28, where the party injured filed an acknowledgment of satisfaction, an order that upon payment of costs the indictment be laid on file, was equivalent to an...

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  • Ex parte United States, Petitioner. riginal
    • United States
    • United States Supreme Court
    • 4 Diciembre 1916
    ...a motion for a new trial or in arrest, or to enable the judge to better satisfy his own mind what the punishment ought to be (Com. v. Dowdican, 115 Mass. 133); but it was not a suspension of judgment of this sort that was requested or desired in this case; it was not a mere postponement; it......
  • Simpson v. Spencer
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    ...sentence...." Griffiths v. Immigration and Naturalization Service, 243 F.3d 45, 51 (1st Cir.2001) (quoting Commonwealth v. Dowdican's Bail, 115 Mass. 133, 136 (1874)) (internal quotation marks omitted). Placing a case on file "suspends the adjudicative process [as to that indictment] until ......
  • US v. Hines, Crim. No. 91-10298-K
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    ...may be, by reason of extenuating circumstances or other sufficient causes, beneficial to the defendant. See Commonwealth v. John Dowdican's Bail, 115 Mass. 133, 136 (1874). Moreover, the law in Massachusetts is that felony cases placed on file after an adjudication of guilt are convictions ......
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