State v. Lubosky

• Decision Date: 14 January 1938
• Docket Number: No. 7832.,7832.
• Parties: STATE v. LUBOSKY.
• Court: Rhode Island Supreme Court

196 A. 395

STATE

v. LUBOSKY.

No. 7832.

Supreme Court of Rhode Island.

Jan. 14, 1938.

Exceptions from Superior Court, Kent County; Walter Curry, Judge.

Samuel Lubosky was convicted of crime, and he brings bill of exceptions.

Exceptions overruled, and case remitted.

John P. Hartigan, Atty. Gen., and Michael De Ciantis, 3d Asst. Atty. Gen., of Providence, for the State. James O. McManus and Raoul Archambault, both of Providence, for defendant.

BAKER, Justice.

This is a criminal complaint. After a trial in the superior court, a verdict of guilty of the offense as charged was returned by the jury. The defendant duly filed a motion for a new trial and on May 2, 1936, the trial justice heard and denied this motion. Thereafter, on May 8, 1936, the defendant filed a motion that the above decision of the trial justice be vacated and that the case be set down for hearing, on the motion for a new trial, to a day certain. This motion was granted by the trial justice over the state's objection, and the decision denying defendant's motion for a new trial was ordered vacated, and such motion was set down for hearing on a definite date. On May 28, 1936, when this motion came before the court, the state moved that the trial justice vacate the said order entered by him May 8, 1936, on defendant's motion. After hearing and consideration, the trial justice granted the state's motion and vacated the above order made by him May 8, 1936. To this ruling, the defendant has prosecuted his bill of exceptions to this court.

The question raised by the defendant's exception is whether or not the trial justice had jurisdiction to enter his order on May 8, 1936, and set down 'the defendant's motion for a new trial for rehearing, after he had heard and decided such motion on May 2, 1936.

The defendant urges that a court of record, such as the superior court, has general control over its judgments, orders, and decrees, so as to amend and change them at any time during the same term of the court in which they were rendered and made, and that passing upon motions for new trials falls within this rule. Undoubtedly such a principle of law is recognized in many jurisdictions. 15 R.C.L. 677; 20 R.C.L. 312; Luke v. Coleman, 38 Utah 383, 113 P. 1023, Ann.Cas.1913B, 485. However, in others, as here, such a rule is not accepted or followed. By Gen.Laws 1923, c. 344, § 2, it is provided in substance that in case of a judgment by default or one entered by mistake, or in case of decrees in equity and in causes following the course of equity, the court entering the same shall have control over the same for the period of six months after the entry thereof. It is clear that this statute has no application in the present case. If the trial justice's decision on the defendant's motion for a new trial can in any way be considered as a judgment, which is extremely doubtful, no claim is made by the defendant that it was entered by mistake or by reason of any default.

This court has heretofore had occasion to lay down the rule of law which governs and limits the jurisdiction of a trial justice in this state in situations generally similar to the one now before us on the record in the present case. Ashaway National Bank v. Superior Court, 28 R.I. 355, 67 A. 523; Whitford, Bartlett & Co. v. Townsend, 32 R.I. 392, 79 A. 960; David v. David, 47 R.I. 122, 130 A. 861. In the first of the above cases, a probate appeal heard by the court without a jury, the trial justice entered a decision for the appellant on November 19, 1906. Thereafter, on February 12, 1907, the trial justice vacated the decision made by him in November, and entered a similar decision as of the date last mentioned. This court at page 359 of 28 R.I., 67 A. 523, 525 held: "We find no statutory authority for the position that cases may be held for advisement after...