Commonwealth v. Costello

• Decision Date: 29 November 1876
• Parties: Commonwealth v. John F. Costello
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 371

Commonwealth v. John F. Costello

Supreme Court of Massachusetts

November 29, 1876

Suffolk. Indictment for forgery. At the trial in the Superior Court, the defendant was found guilty, and, before sentence filed a motion for a new trial. This motion was heard and overruled in the absence of the defendant, while he was confined in jail. Neither the defendant nor his counsel expressed a wish that he should be present at the hearing.

The defendant, on being called up for sentence, filed a motion in arrest of judgment for the following reasons:

"1. It does not appear of record that he was present when and while the motion for a new trial was heard and tried, and when the same was decided by the court, and no reason or excuse appears therefor.

"2. In truth and in fact, said motion was heard and tried, and witnesses examined upon the same both in his own behalf and in behalf of the government, in the direct and in cross-examination, the arguments made, and the decision of the court pronounced thereon, in his absence, and not while he was present in court, as required by law; that he was during all of said time, confined in jail under an arrest on said indictment, and held to bail, which he was unable to give; that he was subject to the control of the court, and could have been brought by the government into court at the hearing, and wished to be present; that he had no opportunity to confront the witnesses against him, as entitled by the Constitution and the laws."

The facts stated in the motion were not controverted by the government. Colburn, J., overruled the motion; and the defendant alleged exceptions.

Exceptions overruled.

A. A. Ranney & H. E. Swasey, for the defendant.

C. R. Train, Attorney General, & W. C. Loring, Assistant Attorney General, for the Commonwealth, were not called upon.

Gray C. J. Endicott, Devens & Lord, JJ., absent.

OPINION

Gray C. J.

The rule that a defendant has the right to be present at every step of the proceedings against him in behalf of the Commonwealth, from arraignment to sentence, does not apply to a motion for a new trial, which is not a necessary step in those proceedings, and is not made by the Commonwealth, but by the defendant himself, and is addressed to the discretion of the court, and is not followed by any new judgment against him.

When the defendant is already in custody, it has never been the practice in this Commonwealth to require his presence at the making, the hearing or the decision of a motion in his behalf for a new trial. When he is not in custody, the court will not entertain such a motion in his absence, not because he has a right to be present; but because he has no right to be heard, without...