Marks v. Wentworth

Decision Date20 May 1908
Citation199 Mass. 44,85 N.E. 81
PartiesMARKS v. WENTWORTH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Easton S. Bacon, for petitioner.

John J Higgins, Dist. Atty., for respondent.

OPINION

KNOWLTON C.J.

This is a petition for a writ of mandamus to compel the respondent who is the standing justice of the police court of the city of Somerville to bring forward on the docket a criminal case pending in that court against the petitioner, and to impose sentence, or otherwise to make a final disposition of the case.

The complaint against the petitioner was for an assault and battery. There was a trial in the police court before the respondent, who found the petitioner guilty. The case was then continued, and the probation officer was instructed to investigate the facts relating to it and report to the court. The petitioner was then under a recognizance; but afterwards with his consent, he was placed on probation with the probation officer, and the case was continued several times. At the continuance next before the last one, the petitioner, for the first time, objected to a further continuance and requested that sentence be imposed. For a good reason the court again continued the case, and when it was afterwards reached, the petitioner's wife, upon whom the assault was alleged to have been committed, appeared at the request of the court, and said that she and her husband were living together and that everything was all right between them. The respondent then intimated that he was willing to place the case on file, but the petitioner objected and argued against it. Thereupon the court took the case under advisement and continued it eight days. When it came up at the expiration of this time, the petitioner asked that sentence be imposed. The respondent stated that, as the petitioner had been put on probation and the object of the probation seemed to have been accomplished, he deemed the only proper disposition of the case was to place it on file, and the court so ordered. The petitioner claimed an appeal, which the court refused.

It has long been the practice in this commonwealth for a court, with the consent of the defendant, after a verdict or plea of guilty in a criminal case, when for good cause it seems best not to impose sentence immediately, to place the case on file. This practice has been recognized by statute and approved by this court. The effect of it is fully stated in Com. v. Dowdican's Bail, 115 Mass. 133. See, also, Com. v. Foster, 122 Mass. 317-323, 23 Am. Rep. 326; Com. v. Maloney, 145 Mass. 205, 13 N.E. 482. The case then stands on the records of the court, and although usually no further proceedings are had in it, it may at any time be called up and sentence may be imposed, or some other final disposition may be made of it. But the case cannot properly be placed on file without the consent of the defendant. He has a right to have it finally disposed of, without unreasonable delay, so that he will not be liable for an indefinite period to be brought into the court and subjected to punishment. Although this practice formerly prevailed only in the higher courts, it was extended by statute to the police, district and municipal courts. Rev. Laws, c. 160, § 39; St. 1893, p. 1123, c. 396, § 54. But when the statute gave to these courts authority to place complaints on file, it did not authorize such a disposition of a case against the objection of the defendant.

The order made by the respondent in this case was, therefore, irregular. The petitioner cannot be compelled to remain for years subject to the risk of being sentenced on this complaint, if at any time the public authorities should choose to bring him before the court for that purpose.

If the order be given any effect,...

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