In re Petition of Allen

• Decision Date: 04 March 1926
• Citation: 255 Mass. 227,151 N.E. 68
• Parties: Petition of ALLEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 227

151 N.E. 68

Petition of ALLEN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1926.

Petition by Griffin A. Allen to establish the truth of exceptions. Petition dismissed.

1. Criminal law k1092(9)-Trial judge cannot revive right to file exception after time for filing as previously limited has expired (G. L. c. 231, s 113; chapter 278, s 31).

The trial judge has no power to revive right of defendant in a criminal case to file exceptions after the time for filing exceptions as previously limited has expired; language of G. L. c. 278, s 31, being the same as that of chapter 231, s 113.

2. Criminal law k1092(11).

Where exceptions were not filed within time allowed by law, petition to establish their truth cannot be considered.

S. Smedile and J. S. Mitchell, both of Boston, for petitioner.

RUGG, C. J.

[1] This is a petition to establish the truth of exceptions disallowed by a judge of the superior court. It is alleged in the petition:

‘That on January 9, 1925, the time for the filing of the defendant's exceptions was extended to February 4, 1925; that the defendant's exceptions were not filed on or before that date; that some time subsequent to February 4, 1925, the defendant prepared a motion to the effect that the time for the ‘presenting the bill of exceptions to the court for allowance’ be extended to and including February 10, 1925; that this motion was assented to on February 7, 1925, by Joseph J. Leonard, Assistant District Attorney; that this motion was presented to Bishop, Judge, on February 9, 1925, who made the following endorsement thereon, ‘The time for the filing of the bill of exceptions expired before this motion was presented to the court. If, under these circumstances, the court has the authority to do so, then the above motion is approved and allowed and the time for the allowance of exceptions is extended to and including Tuesday, February 10, 1925.’ The bill of exceptions was filed on February 9, 1925.'

[2] The trial judge has no power to revive the right of a defendant in a criminal case to file exceptions after the time for filing exceptions as previously limited has expired. The language of G. L. c. 278, § 31 in this particular is the same as that of G. L. c. 231, § 113. That point is settled. Hack v. Nason, 76 N. E. 906, 190 Mass. 346;Barnard Manuf. Co. v. Eugen C. Andres Co., 125 N. E. 170, 234 Mass. 148, 152;C. F. Hovey, Petitioner, 151 N. E. 66, 253 Mass. --. The right of the defendant...