Com. v. Riley

• Decision Date: 03 January 1956
• Citation: 131 N.E.2d 171,333 Mass. 414
• Parties: COMMONWEALTH v. Robert J. RILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 171

131 N.E.2d 171

333 Mass. 414

COMMONWEALTH v. Robert J. RILEY.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Dec. 5, 1955.

Decided Jan. 3, 1956.

John P. Sylvia, Jr., Asst. Dist. Atty., Falmouth, for the commonwealth.

James H. Flanagan, Boston, for defendant.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and WHITTEMORE, JJ.

WHITTEMORE, Justice.

Prior to the trial of the defendant in the Superior Court, the presiding judge, acting under G.L. (Ter.Ed.) c. 278, § 30A, inserted by St.1954, c. 528, reported to this court certain questions of law.

The defendant appealed to the Superior Court from a judgment of the First District Court of Barnstable finding him guilty of operating a motor vehicle negligently so that the lives or safety of the public might be endangered.

Before filing a general plea of not guilty in the Superior Court the defendant filed a motion to quash and a plea in abatement, each grounded on the allegations (1) that the District Court judge had refused him the right through counsel to cross-examine witnesses at the hearing on the issuance of process on the complaint--a right alleged to be given by G.L. (Ter.Ed.) c. 218, § 35A, as appearing in St.1945, c. 293, and the Constitutions of the Commonwealth and the United States--and (2) that the judge who had ordered the issuance of the process refused to disqualify himself from hearing the case.

The judge in the Superior Court denied the motion and overruled the plea. His action was grounded on the principle that the general plea of not guilty in the District Court admitted the genuineness of the complaint and he ruled that the points had been waived.

There was no error.

Even had the points been seasonably taken they lack substance. The subject statute, G.L. (Ter.Ed.) c. 218, § 35A, ¹ does not give the prospective defendant the right to cross-examine witnesses. This statute means only what it says, namely, 'the person against whom such complaint is made, shall * * * upon request in writing, seasonably made, be given an opportunity to be hear personally or by counsel in opposition to the issuance of any process based on such complaint.' The statute, first enacted in 1943 in permissive form, gave a statutory basis for a practice sometimes theretofore followed by the judge or clerk of allowing the attorney for the prospective defendant to state relevant circumstances which might be thought to bear on the propriety of the issuance of process.

The motion and the plea asserted that the defendant and his counsel were present at the hearing on the issuance of process. There is no claim that they were denied an opportunity to be heard otherwise than by the denial of permission to cross-examine witnesses. The defendant cites G.L. (Ter.Ed.) c. 276, § 38, ² in support of his point and no other statute and no constitutional provision. The cited statute does not apply to a hearing on the issuance of process on a complaint. The context of this section confirms that it is referring to proceedings after process has issued for the apprehension of persons charged with crime. G.L.(Ter.Ed.) c. 276, §§ 21-42. See Commonwealth v. Dillane, 11 Gray 67, 71.

The defendant cites no authority to support his point that the District Court judge was disqualified. There is nothing in this.

In any event the points were waived by the plea of not guilty in the District Court. See In re Lebowitch, 235 Mass. 357, 363, 126 N.E. 831; Commonwealth v. Homer, 235 Mass. 526, 537, 127 N.E 517; Commonwealth v. Lombardo, 271 Mass. 41, 44, 170 N.E. 813; Commonwealth v. Ventura, 294 Mass. 113, 120, 1 N.E.2d 30. This was not in the nature of a formal defect apparent on the face of the process, objection to which is raised by a motion to quash, or a demurrer. G.L.(Ter.Ed.) c. 278, § 17. It may be noted, however, that such formal defects also must be raised before...