Com. v. Drohan

• Decision Date: 03 January 1912
• Citation: Com. v. Drohan, 210 Mass. 445, 97 N.E. 89 (Mass. 1912)
• Parties: COMMONWEALTH v. DROHAN.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 445

97 N.E. 89

COMMONWEALTH v. DROHAN.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1912

COUNSEL

P. H. Kelley, for appellant.

A. C Webber, Asst. Dist. Atty., for the Commonwealth.

This was a complaint originally brought in the municipal court of the city of Boston charging the defendant and another with the crime of attempting to commit larceny from the person of an unknown man.The defendant pleaded not guilty, was tried in the municipal court on January 2, 1911, convicted and sentenced.He appealed to the superior court, and the complaint was entered in that court on February 6.A motion to quash the complaint and a motion for a bill of particulars were filed by him on February 8.He was called to come into court and prosecute his appeal on September 5, and did not appear but made default.On October 25, 1911, the defendant was brought into court and filed a motion to remove said default, which motion was overruled.He then filed a motion in arrest of judgment, which motion was denied.He was thereupon sentenced to the house of correction and filed a motion to stay the execution of sentence, and this motion was denied.

OPINION

DE COURCY, J.(after stating the facts as above).

This case comes here upon an appeal from the judgment of the superior court, overruling the motion to remove the default denying the motion in arrest of judgment, and the request for a stay of sentence; and also from the final judgment.

1.The motion to remove the default was addressed to the discretion of the court.Commonwealth v. Quirk,155 Mass. 29629 N.E. 514.The defendant had a full trial upon the facts in the municipal court and appealed to the superior court.He defaulted when his case was duly called for trial and thereby, in effect, admitted every material allegation in the complaint.The case was then ripe for sentence, notwithstanding the pendency of the motion to quash and the motion for particulars, which were not called to the attention of the court.If the defendant desired to be heard upon these questions it was his duty to present them to the court when the case was called for trial.By suffering a default he waived the benefit of the motions.R. L. c. 219, § 27;Commonwealth v. Whitney,108 Mass. 5;Dalton-Ingersoll Co. v. Fiske,175 Mass. 15, 55 N.E. 468;McIntyre v. People,38 Ill. 514, 521.We may add that it was too late to file a motion to quash for insufficiency of form after the case reached the superior court.Commonwealth v. Reid,175 Mass. 325, 56 N.E. 617.And as the complaint sets out the charge 'fully, plainly, substantially, and formally,' the motion for particulars is without substantial merit.

2.The motion in arrest of judgment was rightly overruled.'No motion in arrest of judgment shall be allowed for a cause existing before verdict, unless it affects the jurisdiction of the court.'R. L. c. 219, § 38.Commonwealth v Chiovaro,129 Mass. 489.This section has been construed to apply where the facts are settled by a default.Commonwealth v. Swain,160 Mass. 354, 35 N.E. 862, and disposes of at least the first part of the motion, based upon the pendency of motions filed before the defendant was defaulted.The remaining question raised is whether the right to sentence the defendant was lost by the repeal of R. L. c. 208, § 30, which prescribed the punishment for larceny of property not exceeding five dollars in value.This statute was in force when the crime was alleged to have been committed, but was repealed before the defendant was sentenced in the superior court.Even if it were true that R. L. c. 215, § 6, cl. 4 restricted the court to a sentence for an attempt to commit this minimum larceny the obvious answer to the defendant's contention is, that by the express provisions of R. L. c. 8, § 4, cl. 2, the repeal of the statute did not affect this prosecution, which was then pending.No saving clause in the repealing statute was necessary because under this long established rule of...