State v. Belmestieri.

• Decision Date: 02 January 1945
• Docket Number: No. 3508.,3508.
• Citation: 40 A.2d 836
• Parties: STATE v. BELMESTIERI.
• Court: New Hampshire Supreme Court

40 A.2d 836

STATE

v.BELMESTIERI.

No. 3508.

Supreme Court of New Hampshire.

Jan. 2, 1945.

Exceptions from Municipal Court of Portsmouth.

Adam Belmestieri was convicted after a plea of guilty of keeping a gaming place in violation of R.L. c. 447, § 6. To review a ruling refusing an appeal, defendant excepted.

Exceptions sustained.

Complaint, for keeping a gaming place in violation of R.L. c. 447, § 6. The defendant, who was not represented by counsel, was arraigned in the Municipal Court of Portsmouth and pleaded guilty. He was ordered to pay a fine of $100 and costs and serve 90 days in the House of Correction. After paying the fine, the defendant engaged counsel, who claimed the right to prosecute an appeal to the Superior Court. The Justice of the Municipal Court refused to allow the appeal on the ground that the defendant's only recourse was to the Supreme Court. The defendant excepted to this ruling, and his bill of exceptions was allowed and transferred as authorized by R.L. c. 377, § 20.

Samuel Levy, City Sol., of Portsmouth, for the State.

Arthur J. Reinhart, of Portsmouth, for defendant.

MARBLE, Chief Justice.

The jurisdiction conferred upon municipal courts in criminal cases is granted subject to appeal to the Superior Court R.L. c. 377, § 15; R.L. c. 421, § 2. Concerning a defendant's right of appeal in such cases, the Court in Philpot v. State 65 N.H. 250, 251, 252, 20 A. 955, 956 approving the Massachusetts rule (see State v. Coan, 91 N.H. 489, 490, 23 A.2d 369) declares: ‘In cases triable in the lower court without a waiver of appeal, the right of appeal is not barred by a plea of guilty.’ We are not disposed to question this dictum.

This does not mean, however, that the appeal which should be allowed in the present case entitles the defendant as of right to a new trial on the merits, for unless the Superior Court, for good cause shown, permits the defendant to withdraw his plea, the only question for that Court to decide is what sentence impose. The Massachusetts rule, mentioned above, has been thus stated:

‘By his plea of guilty when first arraigned in the municipal court the defendant admitted the substantive allegations of the complaint, and while his appeal to the superior court after conviction vacated the judgment, it did not change the issue, which had been joined, or entitle him to a jury trial, and on the record nothing remained to be done except to impose sentence. Commonwealth v. Mahoney, 115 Mass. 151; Commonwealth v. Ingersoll, 145 Mass. 381, 382, 14 N.E. 449.

‘The appellate court, however, upon the defendant's application, * * * could permit him to withdraw the plea below, and plead anew, if satisfied that his admission of guilt was not voluntary and intentional, but resulted from inadvertence. Commonwealth v. Winton, 108 Mass. 485.’ Commonwealth v. Crapo, 212 Mass. 209, 210, 98 N.E. 702, 703. See State v. Cotton, 24 N.H. 143, 146; State v. Coan, 91 N.H. 489, 491, 23 A.2d 369. Cases allowing an appeal after a plea of guilty are collected...