Jacob Fine v. Commonwealth
| Decision Date | 27 October 1942 |
| Citation | 44 N.E.2d 659,312 Mass. 252 |
| Parties | JACOB FINE v. COMMONWEALTH (and three related cases [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 5, 1942.
Present: FIELD, C.
J., QUA, DOLAN & COX, JJ.
Practice, Criminal New trial, Execution of sentence, Double jeopardy. Superior Court, Jurisdiction. Constitutional Law, Double jeopardy. The staying under G. L. (Ter. Ed.) c. 279, Section 4, as appearing in St.
1935, c. 50 Section 3, of execution of sentence for a crime not punishable by death is discretionary.
It was within the power of a judge of the Superior Court, after allowing a motion for a new trial of a criminal case, to reconsider the motion, vacate the allowance and deny the motion, and thereupon to revoke a previous stay of execution of sentence and such action did not put the defendant in double jeopardy.
FOUR PETITIONS, filed in the Supreme Judicial Court for the county of Suffolk on May 5, May 5, May 6, and May 13, 1942, respectively.
The cases were heard by Lummus, J.
E. M. Dangel, (L.
E. Sherry & S.
Marshall with him,) for Fine.
F. J. Hickey, Assistant District Attorney, for the Commonwealth.
These are four petitions, the allegations of which, according to the consolidated bill of exceptions, are substantially the same praying for stay of execution of sentence and for the issuance of writs of error, certiorari and habeas corpus, wherein the petitioner seeks to be admitted to bail and to have certain orders and the imposition of sentence declared erroneous.
On May 23, 1941, the petitioner was found guilty by a jury under an indictment charging him with being an accessory before the fact to the crime of burning a dwelling house with the intent to defraud certain insurance companies, and was sentenced to two years in the house of correction. At the same time execution of the sentence was stayed in accordance with G. L. (Ter. Ed.) c. 279, Section 4, inserted by St. 1935, c. 50, Section 3. On July 14, 1941, the petitioner filed a motion for a new trial, and a bill of exceptions that is still pending and awaiting allowance. On September 9, 1941, the motion for new trial was allowed. On September 12, 1941, the Commonwealth filed a motion to disallow and vacate the allowance of the motion for new trial. On September 18, 1941, the chief justice of the Superior Court, who had imposed sentence, "allowed the Commonwealth's motion for a re-hearing on the motion for new trial, allowed the Commonwealth's motion to disallow and vacate the allowance of a motion for a new trial, and denied the motion for a new trial." On May 4, 1942, the chief justice revoked the stay and "caused the said sentence to be re-imposed, a mittimus to issue, and the petitioner is now confined . . . under the said sentence." Each petition was dismissed by a single justice of this court, subject to an exception in each case.
The petitioner contends that the trial judge was without authority to vacate his order granting a new trial, or, if this is not so, that this court ought to stay execution of sentence and admit him to bail until final disposition of his bill of exceptions.
General Laws (Ter. Ed.) c. 279, Section 4, inserted by St. 1935, c. 50, Section 3, empowers a justice of this court, as well as the judge imposing sentence, to stay execution of sentence, and at the same time make an order relative to the custody of the prisoner or for admitting him to bail. The application to a justice of this court for stay of execution, the subject matter of one of the petitions, had been passed upon adversely. If this were the only question before this court, the determination of it by the single justice being a matter of discretion, it could not be said that there was any error. Commonwealth v. Drohan, 210 Mass. 445 , 448.
The answer to the vital question depends upon the authority of the trial judge to deal with a motion for new trial after he has allowed it. General Laws (Ter. Ed.) c. 278, Section 29, inserted by St. 1939, c. 271, so far as material, provides that the Superior Court may, at the sitting in which a complaint or indictment is tried, or within one year thereafter, upon motion in writing of the defendant, grant a new trial for any cause for which by law a new trial may be granted, or if it appears to the court that justice has not been or cannot be done, and upon such terms or conditions as the court shall order. Before there was any statute relating to the matter, it was decided in Commonwealth v. Green, 17 Mass. 515 , 535, that this court had power to grant a new trial on the motion of one convicted of capital offence, sufficient cause being shown therefor. In Commonwealth v. McElhaney, 111 Mass. 439 , 441, decided in 1873, it was said that this court, by virtue of its general jurisdiction and independently of any special authority conferred upon it by statute, had the power to grant new trials, even in capital cases, but that it was at least doubtful whether an inferior court was authorized to grant a new trial on the merits of any case, civil or criminal. It is unnecessary to go into the inherent power of the Superior Court relative to the granting of new trials, having in mind that that court now has original jurisdiction of all crimes and appellate jurisdiction of crimes tried before a District Court or a trial justice (G. L. [Ter. Ed.] c. 212, Section 6), and also that it is a court of original and general jurisdiction possessing the inherent powers of such a court under the common law, unless expressly limited, as well as those conferred by statute. Commonwealth v. Kemp, 254 Mass. 190 , 192. The first statutory enactment relating to new trials in criminal cases is St. 1830, c. 113, Section 3, and the history of subsequent statutes may be found in Commonwealth v. McElhaney, 111 Mass. 439 , 441-442, and Commonwealth v. Rollins, 242 Mass. 427 , 432-434. In Commonwealth v. Marrelli, 266 Mass. 113 , 116, it was said of the statute relative to new trials then in force that contained provisions, in so far as material, similar to those contained in the present statute, that its words were plain and that it conferred power upon the court in the designated cases to consider a motion for a new trial within the year, although sentence had been imposed and the prisoner committed in execution thereof.
It was one of the earliest doctrines of the common law that the record of a court might be changed or amended at any time during the same term of the court in which a judgment was rendered. This, however, was not the extent of the power of the court over its records, for upon due proof that some error had been made in drawing up the record, amendments were allowed after the final entry of judgment and the adjournment of the court for the term. Commonwealth v. Weymouth, 2 Allen, 144, 145, 146. Karrick v. Wetmore, 210 Mass. 578 , 579. Prenguber v. Agostini, 289 Mass. 222 , 223. Sentences could be revised during the term at which they were imposed, if the sentence remained unexecuted, but not thereafter. Commonwealth v. O'Brien, 175 Mass. 37 , 38-39.
Criminal terms were abolished by St. 1897, c. 490, Section 1. Section 2 of said chapter provided that the word "term," when used in statutes relating to criminal business of the Superior Court, shall be construed to mean "sitting." (See G. L. [Ter. Ed.] c. 213, Section 4.) As the law now stands, by analogy, an unexecuted sentence may be revised before the end of the sitting, Commonwealth v. Dascalakis, 246 Mass. 12 , 20, and, where execution of sentence is stayed, jurisdiction of the case is continued in the Superior Court for some purposes after the imposition of sentence and after the expiration of the sitting in which the sentence is imposed, it now being mandatory to impose sentence notwithstanding exceptions or appeal. G. L. (Ter. Ed.) c. 279, Section 4, inserted by St. 1935, c. 50, Section 3. After exceptions are overruled, the court has power to vacate the order staying the sentence and to direct the execution of it, and this impliedly includes the power to correct any illegality or error in a sentence and to prevent injustice, provided it then remains wholly unexecuted. Commonwealth v. O'Brien, 175 Mass. 37, 39, 40. Commonwealth v. Lobel, 187 Mass. 288 . Reference to cases involving the power of the Superior Court to act after a stay of execution of sentence may not be important in the case at bar except in so far as they point out that the jurisdiction of the court is continued for certain purposes despite the fact that sentence has been imposed, and that from early times the importance of the fact that a sentence has not been executed in whole or in part has been recognized in cases where the power of the court to amend or set aside and impose a new sentence has been involved. See Commonwealth v. Foster, 122 Mass. 317 , 323; Commonwealth v. O'Brien, 175 Mass. 37 , 39; Commonwealth v. Soderquest, 183 Mass. 199 , 200. We are not called upon to determine what the result would be if execution of the petitioner's sentence had not been stayed.
Sentence is final judgment in a criminal case, and that is the end of the case apart from statutory provisions, so far as concerns the usual and ordinary control of the court. This, in substance, is the same rule as that applicable to judgments in actions at law and to final decrees in suits in equity. Commonwealth v. Dascalakis, 246 Mass. 12 , 19. It is to be borne in mind, however, that a new trial may be granted and an unexecuted sentence may be revised before the end of the sitting, Commonwealth v. Dascalakis, 246 Mass. 12 , 20; that upon vacation of the order staying sentence, the court may revise its own order as to sentence, to correct a manifest error and to prevent injustice, Commonwealth v. O'Brien, 175...
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