Commonwealth v. Kossowan

• Decision Date: 05 January 1929
• Parties: COMMONWEALTH v. KOSSOWAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 436

165 N.E. 22

COMMONWEALTH

v.KOSSOWAN.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 5, 1929.

Exceptions and Appeal from Superior Criminal Court, Essex County; G. H. W. Hayes, Judge, sitting under St. 1923, c. 469.

Willam Kossowan was convicted of an offense, and he appeals and excepts. Appeals dismissed, and exceptions overruled.

1. Criminal law k1023(12)-Defendant cannot appeal from disallowance of bill of exceptions (G. L. c. 278, s 31; c. 231, s 117).

Defendant cannot appeal from disallowance of bill of exceptions; the only relief in such case being petition to establish truth of exceptions under G. L. c. 278, s 31, and chapter 231, s 117.

2. Criminal law k1009-Defendant cannot except to disallowance of bill of exceptions.

Defendant cannot except to disallowance of bill of exceptions.

3. Criminal law k1007-Appeal is superfluous where questions involved are open on exceptions.

Where every question intended to be raised is open on exceptions, appeal is superfluous.

4. Criminal law k977(3)-Court must promptly sentence defendant on conviction for crime not punishable with death (G. L. c. 279, s 4).

Under G. L. c. 279, s 4, it was trial judge's duty to sentence defendant promptly upon conviction for crime not punishable with death.

5. Criminal law k1092(1)-Court's failure to sentence convicted defendant did not affect defendant's right to file exception or court's right to pass thereon.

Court's failure to sentence defendant on conviction did not affect defendant's right to file exceptions or deprive judge of jurisdiction to pass upon exceptions.

6. Criminal law k1092(3, 11)-It was unsentenced defendant's duty to file exceptions, and judge's duty to allow or disallow them without delay (G. L. c. 278, s 31).

It was defendant's duty to file exceptions following conviction and judge's duty to allow or disallow exceptions, under G. L. c. 278, s 31, without substantial delay, though judge had not sentenced defendant.

W. G. Clark, Dist. Atty., of Gloucester, and E. F. Flynn, Asst.

Dist. Atty., of Lynn, for the Commonwealth.

E. M. Shanley, of Boston, for defendant.

RUGG, G. J.

After trial and verdict of guilty, the defendant filed a bill of exceptions which was disallowed before sentence was imposed. The defendant filed a petition in the Supreme Judicial Court to establish the truth of those exceptions. That petition was dismissed by rescript containing as the brief statement of the reasons for decision this: ‘Case governed by Petition of Thorndike. 244 Mass. 429, 139 N. E. 208, and by In re Bishop, 208 Mass. 405, 407, 94 N. E. 479, and Petition of Koch, 225 Mass. 148, 150, 114 N. E. 79.’ No opinion was written. Thus it was adjudged that the exceptions were without merit. Petition of Reynolds, 253 Mass. 427, 428, 149 N. E. 154;Petition of Bullock, 254 Mass. 14, 17, 149 N. E. 604.

[1] The defendant also appealed from the disallowance of his bill of exceptions. No such practice is permissible. The only relief is by petition to establish the truth of the exceptions under G. L. c. 278, § 31; chapter 231, § 117. See Petition of Thorndike, 250 Mass. 408, 145 N. E. 762, and cases there cited; Petition of Weymouth, 251 Mass. 359, 146 N. E. 720.

[2] It is stated in the bill of exceptions, ‘The defendant never having been sentenced before the disallowance of said exceptions to which order, disallowing the defendant's exceptions the defendant excepted.’ This appears to mean that the defendant excepted to the disallowance of his bill of exceptions. That is impossible practice. Petition of Barnett, 240 Mass. 228, 133 N. E. 111;Petition of Thorndike, 244 Mass. 429, 139 N. E. 208; Id., 250, Mass. 408, 145 N. E. 762;Id., 254 Mass. 256, 150 N. E. 296.

[3] If this appeal be treated as intended to bring up the record for correction of errors of law, for reasons presently to be stated there was no error. But every question thus attempted to be raised is open on the exceptions and will be considered in that connection. Appeal of this nature is superfiuous.

[4][5][6] After the dismissal of the petition to establish exceptions, the defendant was sentenced for the first time. To this sentence the defendant excepted. It was the duty of the trial judge to sentence the defendant upon conviction for the crime of which he had been found guilty, if not being punishable with death. G. L. c. 279, § 4. In re Lebowitch, 235 Mass. 357, 363, 126 N. E. 831. The reasons why sentence was not promptly imposed do not appear. Manifestly the case was not filed or prosecution suspended. The case of Commonwealth v. Carver, 224 Mass. 42, 44, 112 N. E. 481, is not pertinent. The obligation to sentence resting on the presiding judge was directory so far as concerned the defendant, and failure, if any, to perform it did not impair his substantial rights. Cheney v. Coughlin, 201 Mass. 204, 211, 212, 213, 87 N. E. 744;Ashley v. Three Justices of Superior Court, 228 Mass. 63, 70, 116 N. E. 961 (8 A. L. R. 1463).Trustees of Andover Seminary v. Visitors, 253 Mass. 256, 280, 148 N. E. 900;Bath Iron Works, Limited, v. Savage, 262 Mass. 123, 159 N. E. 445. It was said by Mr. Justice Holmes in Commonwealth v. Clifford, 145 Mass. 97, 98, 13 N. E. 345, 347, respecting an adjudication that exceptions were frivolous and intended for delay: ‘We have no doubt of the power of the court to pass upon the exceptions before they are filed or allowed.’ That principle, although declared before the enactment of St. 1895, c. 469, now G. L. c. 279 § 4, is equally sound since that enactment. Commonwealth v. Brown, 167 Mass. 144, 146, 45 N. E. 1. It is pertinent to the case at bar. The want of sentence did not affect the right of the defendant to file exceptions. He was required to act betimes in this respect if he desired not to waive his exceptions. Petition of Allen, 255 Mass. 227, 151 N. E. 68. The fact that sentence had not been imposed did not deprive the trial judge of jurisdiction to pass upon the exceptions. It was his duty to consider the exceptions without substantial delay, and either to allow or disallow them. G. L. c. 278, § 31; Petition of C. F. Hovey Co., 254 Mass. 551, 151 N. E. 66. If he disallowed them, the defendant, in order to preserve his rights, was required to proceed in strict accordance with the statute as to form, substance and time, in order to press his petition to establish exceptions. He pursued that course. This court had jurisdiction to consider that petition and disposed of it according to settled principles.

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