Commonwealth v. Robinson

• Decision Date: 28 October 1936
• Citation: 295 Mass. 471,4 N.E.2d 300
• Parties: COMMONWEALTH v. ROBINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 471

4 N.E.2d 300

COMMONWEALTH v. ROBINSON.

Supreme Judicial Court of Massachusetts, Middlesex.

October 28, 1936

John H. Robinson was convicted by a judge without a jury a foregoing and uttering as true a forged check, and of larceny, and he appeals with assignments of error.

Affirmed.

Appeal from Superior Court, Middlesex County Dowd, Judge.

John H Robinson, pro se.

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

LUMMUS, Justice.

The defendant was indicted for the forgery of a check, and in a second count for the uttering and publishing as true of a forged check. G.L.(Ter.Ed.) c. 267, §§ 1, 5. Another indictment charged him with larceny. His plea was not guilty in each case. On February 6, 1936, he waived trial by jury under G.L. (Ter.Ed.) c. 263, § 6, was tried by a justice of the superior court, and was found guilty on each indictment. The defendant conducted his own defence, and took no exceptions. On the same day the indictment for larceny was placed on file, and he was sentenced on the other indictment to imprisonment in the state prison for not less than three nor more than five years, the sentence to take effect from and after the expiration of earlier sentences.

On February 10, 1936, acting pro se, the defendant petitioned for the suspension of the execution of the sentence. St.1934, c. 205, § 1, St.1935, c. 358, amending G.L.(Ter.Ed.) c. 279, § 1. On the same day, purporting to act under G.L.(Ter.Ed.) c. 278, § 33B, he filed pro se a claim of appeal from the finding of guilty in each case. The summary of the record prepared by the clerk under section 33C does not show, as it should, that the judge ordered the trial made subject to G.L.(Ter.Ed.) c. 278, §§ 33A to 33G, but the order appears in the transcript of the evidence certified by the stenographer under section 33A. See Ansara v. Regan, 276 Mass. 586, 591, 592, 177 N.E. 671. On February 10, 1936, the defendant filed a motion for a new trial, assigning six grounds, all of which could have been taken at the trial. Commonwealth v. Polian, 288 Mass. 494, 501, 502, 193 N.E. 68, 96 A.L.R. 615; Commonwelath v. Di Stasio (Mass.) 1 N.E.(2d) 189. We assume in favor of the defendant that his petition for suspension and his motion for a new trial were denied. At some time not shown by the record he filed what he called a ‘ bill of exceptions,’ which contained no statement of facts or evidence, but purported merely to take a general exception to the denial of the motion for a new trial, an exception ‘ to each and all findings of fact and of law upon which the said denial is based,’ and an appeal from the denial of said motion. This ‘ bill of exceptions' has never been allowed, and as a bill of exceptions cannot be considered.

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