Com. v. MaLoney

• Decision Date: 21 October 1887
• Citation: 145 Mass. 205,13 N.E. 482
• Parties: COMMONWEALTH v. MALONEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 205

13 N.E. 482

COMMONWEALTH v. MALONEY.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1887

COUNSEL

J.W. Corcoran and Thos. F. Gallagher, for defendant.

OPINION

That the magistrate had original and final jurisdiction of the defendant and the offense is conceded. That the case was ripe for sentence, June 26, 1886, upon the defendant's plea of guilty is likewise admitted. The order of the court made that day, "that the case stand continued for sentence to August 7, 1886," was without legal authority, and void. Pub.St. c. 212, § 26. The court had lost jurisdiction of the defendant, and could not impose sentence. Pub.St. c. 212, § 26. If it could be said, however, that such is not the law, or that the defendant waived any illegality in the proceedings by paying costs, then it is replied that the magistrate exhausted his jurisdiction by imposing a sentence, to-wit, the payment of costs; and it was not in his power to further punish the defendant. Com. v Foster, 122 Mass. 323. After the adjournment of his court for the day, the magistrate could not revise or modify said sentence, and it must stand, together with the record thereof, as rendered and made up. Com. v. Foster, supra; Ex parte Lange, 18 Wall. 163, 174; Rex v. Fletcher, Russ. & R. 58; Com. v. Mayloy, 57 Pa.St. 291; Brown v. Rice, 57 Me. 55. The sentence, having been rendered by a court which had jurisdiction of the party and of the offense, was not absolutely void. Com. v. Loud, 3 Metc. 328; Kite v. Com., 11 Metc. 581; Com. v Foster, supra. Said sentence, having been satisfied, and not having been avoided, must therefore stand as the final sentence of the magistrate. The magistrate, under these circumstances, had no authority to continue this case nisi and his order, therefore, was a nullity. Pub.St. c. 212, § 26. Upon the face of the record, the court surrendered and lost all jurisdiction over the person of the defendant by its orders of June 19th and August 7th, and the proceedings thereafter were coram non judice. Pub.St. c. 212, § 26. The second sentence passed upon defendant, October 16, 1886, was illegal, and the defendant should have been discharged upon his appeal therefrom by the superior court. Com. v. O'Neil, 6 Gray, 345; Pub.St. c. 155, § 58.

A.J. Waterman, Atty. Gen., for the Commonwealth.

W. ALLEN, J.

The defendant cannot, on appeal, take advantage of irregularities in the proceedings before the trial justice, unless they were such as to show that the magistrate had not jurisdiction to impose a sentence. If the trial justice had jurisdiction of the person of the defendant to sentence him upon the complaint, the appellate court had the same jurisdiction upon the appeal. Com. v. Holmes, 119 Mass. 195, and cases cited; Com. v. Dunbar, 15 Gray, 209; Com. v. Dillane, 11 Gray, 67.

The record sufficiently shows that the defendant voluntarily appeared before the magistrate, and submitted to his sentence by appealing from it. Mere consent would not give jurisdiction over the person of the defendant. To make the voluntary appearance and submission show more than mere consent, it is at least necessary that the magistrate should have had power to compel the presence of the defendant. If the defendant could not have been arrested and held for sentence by any legal warrant or authority, the magistrate had no jurisdiction of his person, and could acquire none by consent.

If a magistrate has authority to order a party into custody, or to issue process to arrest him, the party can waive defects in process or service, perhaps can submit to the authority without process; but where there is no authority to arrest and hold a person, or to issue process for his arrest, he cannot, by consent, create such authority, and give jurisdiction to hold and sentence him. The question in the case is whether the magistrate could lawfully have had the defendant arrested and brought before him for sentence, either under the original warrant, or on a capias. If he could not, and could not acquire jurisdiction of the person of the defendant by process, he could not by consent.

The record is very imperfect, but it shows that the defendant was arrested on the warrant, and brought before the trial justice on the nineteenth day of June, and pleaded not guilty; that the case was continued to June 26th, when the defendant retracted his plea, and pleaded guilty; and the case was continued to August 7th, when the defendant was discharged. The record does not state whether before his discharge he was under recognizance, or was held in custody, and it is immaterial whether he was committed to jail, or to the custody of his sureties; he was all the time held under the original warrant, or the warrant of commitment, until his discharge on the seventh of August. Com. v. Morihan, 4 Allen, 585. And that discharge, whether he had been committed or held under recognizance, extinguished the authority to hold him under any then existing process. This must necessarily have been the effect, unless his going at large was an escape on account of which he could have been retaken. But a going at large, under order of court, cannot be an escape, even though the order be irregular and unauthorized. The order amounted to a discharge of the defendant without a judgment, and to nothing more. The record is in words that "the cause was continued nisi upon payment of costs by defendant; to be again called up for sentence upon notice to the defendant." This was not in terms a final judgment, nor an absolute final disposition of the case; but the question is whether the defendant remained a party to it, and, if not, whether he could subsequently be made a party. The case was not "continued" within any meaning of that word known to the law. A continuance is an adjournment to a time certain; a continuance nisi is to a time certain, unless something should occur to cause action upon the case before that time. The record is that the case is continued until it shall be called up on notice. This purports to be an indefinite adjournment of the court, and contingent final disposition of the case. Pub.St. c. 155, § 71, provides that trial justices may adjourn their courts in all cases, civil or criminal, on trial before them, to any time or place, as occasion may require, except as provided in chapter 212, § 26, (which relates to continuances in criminal cases.) This requires an adjournment to a time certain. At common law, justices of the peace could detain in custody for a reasonable time prisoners brought before them for trial or examination. If they exceeded that, the custody was illegal, and they were liable in trespass. Davis v. Capper, 10 Barn. & C. 28; Cave v. Mountain, 1 Man. & G. 257; Davis, Just. 57.

It may be that prior to St.1821, c. 98, there was authority in justices to admit prisoners before them to bail, pending an examination or trial. See Potter v. Kingsbury, 4 Day, 98, though the contrary seems to be laid down in Davis' Justice. That statute provided that justices of the peace might take the recognizance with sureties of any person brought before them for any crime, misdemeanor, or other offense, for his appearance for further examination at a future time not exceeding 10 days. St.1783, c. 42, was "An act describing the power of a justice of the peace in civil actions," and provided that "every justice of the peace shall have power, by public proclamation, to adjourn the trial of any action brought before him from time to time, when equity may require it." Rev.St. c. 85, § 32, authorized a continuance by a justice of the peace of all cases, civil or criminal, on trial before him, to any other time or place as occasion might require; and chapter 135, § 9, the chapter relating to the arrest and examination of offenders, re-enacts, with changes, St.1821, c. 98. It authorizes a magistrate to adjourn an examination or trial pending before him, from time to time, not exceeding 10 days at one time, without the consent...