Commonwealth v. Marrelli

• Decision Date: 30 January 1929
• Parties: COMMONWEALTH v. ANTONIO MARRELLI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 113

COMMONWEALTH v. ANTONIO MARRELLI.

Supreme Judicial Court of Massachusetts, Bristol.

January 30, 1929

January 17, 1929.

Present: RUGG, C.

J., CROSBY CARROLL, & SANDERSON, JJ.

Practice, Criminal New trial, Exceptions. Superior Court, Jurisdiction.

Correction by RUGG C.J., with citation of authorities, of the use of the word "memorandum" in a record as referring to a statement in writing by a judge of the Superior Court of a decision and ruling of law.

Within one year after his conviction, sentence and commitment to State prison, a defendant filed a motion for a new trial on the ground of newly discovered evidence. The motion was denied and the defendant alleged exceptions. In his bill of exceptions was the following, respecting the hearing before the judge: "At the opening of the hearing, before any argument, and without reading or examining the affidavits the defendant's counsel having informed the court as to this motion and contents," the judge "ruled by authority of Commonwealth v. Weymouth, 2

Allen, 144, and cases following and confirming the same that he had no jurisdiction as a matter of law to entertain the motion and that in any event he would not entertain the motion without corroborative evidence because two of the affidavits were executed by inmates of the

Massachusetts State prison. Attorney for the defendant said he was prepared to go ahead with corroborative evidence and to argue the motion." The record stated further that, in response to a request by defendant's counsel, the judge reduced his rulings to writing, stating in substance: "1. After hearing the defendant and . . . [the assistant district attorney] the motion for new trial is overruled, if considered on the value or merits of the affidavits. 2. After sentence has been executed and the mittimus served and the defendant confined to State prison this court is without jurisdiction to entertain a motion for a new trial on any grounds. 3. The order will be that defendant's motion for new trial is denied." Held, that

(1) The statement by the judge, embodied in the bill of exceptions, that the defendant was heard, bound him, and he could not complain in this court that he was not given a hearing;

(2) While the record was susceptible of the inference that the judge declined to receive "corroborative evidence" in support of affidavits annexed to the motion, no exception to such refusal was saved;

(3) While the ruling by the judge that he had no legal authority to entertain the motion was wrong, it did not taint the action of the judge in overruling the motion for a new trial on consideration of its merits and the value of its supporting affidavits;

(4) The exceptions were overruled.

INDICTMENT, found and returned on February 11, 1927, charging the defendant with robbery.

In the Superior Court, the indictment was tried before Dubuque, J., in February, 1927, and the defendant was convicted, sentenced and committed to the State prison. Within one year thereafter, he filed a motion for a new trial. Proceedings with respect to that motion are described in the opinion. The motion was denied. The defendant alleged exceptions.

J.H. Duffy, for the defendant. F.E. Smith, Assistant District Attorney, for the Commonwealth.

RUGG, C.J. These exceptions relate to a motion for a new trial on the ground of newly discovered evidence. The defendant in February 1927, after a trial by jury, was convicted upon an indictment charging him with robbery, sentenced and committed to the State prison in execution of the sentence. Within one year thereafter, in February, 1928, he filed a motion for a new trial based on newly discovered evidence. Supporting affidavits were annexed. The motion came on for hearing before the judge who presided at the trial. Thereupon, it is recited in the exceptions, "At the opening of the hearing, before any argument, and without reading or examining the affidavits, the defendant's counsel having informed the court as to this motion and contents," the judge "ruled by authority of Commonwealth v. Weymouth, 2 Allen, 144, and cases following and confirming the same that he had no jurisdiction as a matter of law to entertain the motion and that in any event he would not entertain the motion without corroborative evidence because two of the affidavits were executed by inmates of the Massachusetts State prison. Attorney for the defendant said he was prepared to go ahead with corroborative evidence and to argue the motion." The judge thereupon again replied that the court "had no legal authority to entertain the motion and would not entertain it. Counsel for the defendant then asked" that the ruling be reduced to such from as would save the defendant's legal rights. The judge filed "a memorandum reading as follows: `. . . 1. After hearing the defendant and Assistant District Attorney Smith for the Commonwealth the motion for new trial is overruled, if considered on the value or merits of the affidavits. 2. After sentence has been executed and the mittimus served and the defendant confined to State prison this court is without jurisdiction to entertain a motion for a new trial on any grounds. 3. The order will be that defendant's motion for new trial is denied. . . . The defendant excepts to above rulings and decision. . . .' The defendant duly excepted to the court's ruling that it had no jurisdiction to entertain the said motion."

Possibly the first part of the recital above quoted, standing alone, might be thought to be equivocal on the point whether the judge heard argument from the counsel for the defendant on the merits of the motion....