Commonwealth v. Glick

• Decision Date: 01 February 1938
• Citation: 299 Mass. 255,12 N.E.2d 841
• Parties: COMMONWEALTH v. GLICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 255

12 N.E.2d 841

COMMONWEALTH

v.GLICK.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 1, 1938.

Exceptions from Superior Court, Middlesex County.

Petition by Samuel Glick to establish exceptions, following his conviction of a criminal offense and dismissal of his bill of exceptions.

Petition dismissed.S. Meline and G. Goldberg, both of Boston, for petitioner.

J. B. Davidson, Asst. Dist. Atty., of Boston, for the Commonwealth.

FIELD, Justice.

This is a petition, filed in this court July 17, 1937, to establish exceptions in a criminal case tried in the Superior Court before a judge and a jury on a complaint against the petitioner brought in a district court. The petition alleges that at the trial the petitioner-there the defendant-seasonably saved exceptions, and continues as follows: ‘The jury returned a verdict of guilty. Thereafter, and within three days, the defendant filed Defendant's Bill of Exceptions, a copy of which is hereto annexed * * * and thereafter, gave notice of said filing and a copy of said bill of Exceptions to the District Attorney. Thereafter, the defendant communicated with the said presiding judge and with the District Attorney, requesting a hearing on the allowance of said Bill of Exceptions, but said hearing was not granted until the seventh day of July, 1937. Thereafter, the said presiding judge refused to allow and sign said Bill of Exceptions, but directed the following entry to be made, ‘1937, July 7. Defendant's Bill of Exceptions dismissed. Dowd, J.’ The defendant received notice of such refusal on the eighth day of July, 1937. And the defendant avers that said Bill of Exceptions are true, and prays this Honorable Court to establish the truth of said Bill of Exceptions.' An alleged copy of the bill of exceptions filed is annexed to the petition. There is no allegation, nor does it appear in the record, that there was any certificate or other indorsement by the trial judge on the bill of exceptions filed.

The docket entries in the Superior Court-a copy of which is transmitted to this court (see G.L. [Ter.Ed.] c. 231, § 135; Styrnbrough v. Cambridge Savings Bank, Mass., 11 N.E.2d 807)-which cannot be varied or contradicted (Gallo v. Foley, Mass., 11 N.E.2d 803) show that on May 12, 1936, there was a verdict of guilty, that on May 14, 1936, the defendant filed a bill of exceptions, and that on July 7, 1937, this bill of exceptions was ‘dismissed.’

The petition was referred to a commissioner to ‘settle the truth of the exceptions and report to the court.’ His report is now before us. It contains a statement that the ‘representative of the Commonwealth * * * disclaimed any contention that the bill of exceptions * * * was not conformable to the truth,’ and that the parties ‘have agreed that the bill may be established in the following form,’ and sets out a ‘Defendant's Bill of Exceptions' which varies only slightly from the bill of exceptions filed by the petitioner.

The grievance stated in the petition is not merely that the trial judge ‘refused to allow and sign’ the bill of exceptions (see G.L. [Ter.Ed.] c. 278, § 31; c. 231, § 117), but also that he ordered the bill of exceptions ‘dismissed.’ The petition not only alleges that the exceptions are conformable to the truth, but also contains allegations relating to filing them, giving notice thereof and requesting a hearing thereon.

It is not to be assumed that in ordering the bill of exceptions dismissed the trial judge acted inadvertently and intended merely to disallow the exceptions...