Marino v. Hibbard

Citation243 Mass. 90,137 N.E. 369
PartiesMARINO v. HIBBARD, Justice, et al.
Decision Date29 November 1922
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from Supreme Judicial Court, Berkshire County.

Petition by Santo Marino for a writ of mandamus directed to Charles L. Hibbard, Justice of the District Court of Central Berkshire, and another. Petition denied, and petitioner brings exceptions. Petition dismissed.

The petitioner was convicted of maintaining a liquor nuisance, placed on probation, and, after his surrender by the probation officer for violation of the terms of his probation, attempted to appeal, and, upon denial of his motion for appeal, brought mandamus. The single justice found the facts to be as stated in defendant's answer. The facts as so found are sufficiently stated in the opinion.

Patrick J. Moore, of Pittsfield, for petitioner.

C. L. Hibbard, of Pittsfield, pro se.

RUGG, C. J.

This is a petition for a writ of mandamus to compel the judge and clerk of a district court to allow the petitioner to claim an appeal from a sentence imposed in that court to the superior court. The relevant facts upon which reliance now is placed are that on the 3d day of January, 1922, the petitioner was convicted in the district court of maintaining a liquor nuisance and sentence of imprisonment for less than six months was imposed, but the execution of the sentence was suspended by the court during the good behavior of the petitioner until the 1st day of January, 1923, and the petitioner placed on probation upon the usual terms. At the time of the imposition of this sentence, the petitioner was notified of his right to appeal, but he did not then appeal. On the 22d day of March, 1922, the petitioner was again brought before the same district court, charged with the commission of two new crimes and was found guilty. On the same day he was surrendered for violation of his probation on the sentence of January 3, 1922, the judge revoked the suspension of the sentence and the probation order, reduced the sentence at the request of the petitioner, and ordered the sentence to be complied with. Thereupon the petitioner requested leave to appeal from the sentence as modified, which was denied, and he was committed. The only question argued is whether he had a right to appeal on the 22d day of March, 1922, in the case on which he was sentenced first on January 3, 1922.

[1] The petition will not be dismissed on the ground that the petitioner has served his sentence. Weiner v. Wentworth, 181 Mass. 15, 62 N. E. 992. The case at bar is distinguishable in this particular from Gabis, Petitioner, 240 Mass. 465, 134 N. E. 267.

[2][3] It is provided by G. L. c. 278, § 18, that:

‘Whoever is convicted of a crime before a district court may appeal to the superior court, and at the time of conviction shall be notified of his right to take such appeal.’

The suspended sentence law is in G. L. c. 279, by section 1 of which it is enacted that:

‘When a person convicted before a district court is sentenced to imprisonment, the court may direct the execution of the sentence be suspended, and that he be placed on probation for such time and on such terms and conditions as it shall fix.’

It is indubitable that the imposition of sentence after finding or plea of guilty constitutes ‘conviction,’ as that words is used in both these sections. It cannot mean the execution of sentence, because there can be no appeal after the prisoner is in the custody of the law upon mittimus issued pursuant to sentence. Conviction ordinarily means a conclusive establishment of guilt. It imports that the question of guilt has been adjudicated and is not open to further inquiry as of right by the person convicted. See Attorney General v. Pelletier, 240 Mass. 264, 310, 311, 134 N. E. and cases there collected.

The time for appeal from conviction in a district court manifestly must be immediately after the imposition of the sentence. This is the effect of several provisions of statute as well as of express decisions. That is the only practicably time for binding witnesses by recognizances to appear before the superior court. Sentences are to be executed forthwith unless suspended or stayed for the exceptional reasons permitted by law. G. L....

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27 cases
  • Commonwealth v. Dascalakis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 22, 1923
  • Com. v. Wilcox
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 9, 2006
  • Commonwealth v. GOODWIN, SJC-10647.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 17, 2010
  • Commonwealth v. Leggett
    • United States
    • Appeals Court of Massachusetts
    • November 14, 2012
    ...See Commonwealth v. Goodwin, 458 Mass. 11, 15, 933 N.E.2d 925 (2010), quoting from Mariano v. Judge of Dist. Court of Cent. Berkshire, 243 Mass. 90, 93, 137 N.E. 369 (1922) (“purpose [of probation] ... is to enable the person to get on his feet, to become law abiding and to lead a useful ........
  • Request a trial to view additional results
1 books & journal articles
  • Substance-Free Probation Conditions for Drug-Addicted Criminals: Reformation or Criminalization?
    • United States
    • Suffolk University Law Review Vol. 53 No. 1, January 2020
    • January 1, 2020
    ...Commonwealth v. LaPointe, 759 N.E.2d 294, 298 (Mass. 2001) (reaffirming probation goals mentioned in Pike). (39.) See Marino v. Hibbard, 137 N.E. 369, 370 (Mass. 1922) (explaining probation's overall function). Further, the Marino court noted that probation mitigates the punishment of deten......

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