Commonwealth v. Scott

• Decision Date: 03 December 1877
• Citation: Commonwealth v. Scott, 123 Mass. 418 (Mass. 1877)
• Court: Supreme Judicial Court of Massachusetts
• Parties: Commonwealth v. Robert Scott & another

123 Mass. 418

Commonwealth v. Robert Scott & another

Supreme Court of Massachusetts

December 3, 1877

Hampshire.

Motion denied.

H. H Bond, for the defendants.

W. C Loring, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.

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

OPINION

Gray C. J.

At June term 1877 of the Superior Court for criminal business for the county of Hampshire, the defendants were tried and convicted of breaking and entering the Northampton Bank with intent to steal therein, and alleged exceptions to the rulings and instructions at the trial, which were allowed by the presiding judge, and were entered at September term of this court for that county, and, upon the adjournment of that term without day, were continued nisi for argument and decision, and by consent of counsel were argued at October term in Worcester, and were afterwards overruled, and on October 19, 1877, a rescript was sent to the Superior Court accordingly, and was entered upon the next day on the docket of tat court. Commonwealth v. Scott, ante, 222.

On November 16, 1877, the defendants field, in the office of the clerk of this court for the county of Hampshire, a motion for a new trial, upon grounds relating to the conduct of the presiding judge, the counsel and the witnesses at the trial, and for newly discovered evidence. Upon this motion being brought to the notice of the full court sitting in Suffolk, a doubt was expressed whether it could be made in this court; and it was agreed that the question whether the motion could be entertained, either by the full court or by a justice thereof, should be argued before the full court, and that, if the question should have been formally reserved by a single justice, it should be treated as so reserved, and proper entries made upon the docket.

The question has now been argued, and upon consideration thereof we are of opinion that the motion cannot be entertained. A motion for a new trial must be made in the court which has at the time jurisdiction of the case. Both this court and the Superior Court have power to grant new trials in cases pending before them respectively. Gen. Sts. c. 115, § 6; c. 129, § 67; c. 173, § 7. Commonwealth v. McElhaney, 111 Mass. 439. Borrowscale v. Bosworth, 98 Mass. 34. Under former statutes, by which an appeal, a bill of exceptions or a report transferred the whole case, it was within the power of this court, while the case remained here, to entertain a motion for a new trial for any cause; but it was not its practice to decide such a motion, when it might be heard in the court below. Commonwealth v. Peck, 1 Met. 428.

Under the existing statutes, the appeal, bill of exceptions or report does not transfer to this court the whole case, but only the question of law to be revised, unless the court upon deciding that question, sees fit to give further directions, or to order that the record of the whole case be brought to this court for trial or other disposition thereof. Gen. Sts. c. 112, §§ 11, 35; c. 114, §§ 10-12, 14; c. 115, §§ 6, 7, 12. Sts....