State v. Fay, 759.

• Citation: 14 A.2d 799
• Decision Date: 22 July 1940
• Docket Number: No. 759.,759.
• Parties: STATE v. FAY et al.
• Court: Rhode Island Supreme Court

14 A.2d 799

STATE

v. FAY et al.

No. 759.

Supreme Court of Rhode Island.

July 22, 1940.

Daniel Fay and others were found guilty by a petit jury of a criminal offense against the laws of the state, after a trial in the superior court. The superior court refused to certify various alleged constitutional questions, and defendants bring certiorari.

Writ quashed and record remitted to the superior court.

Louis V. Jackvony, Atty. Gen., and James O. Watts, Asst. Atty. Gen., for the State.

James A. McGuirk and Frank L. Martin, both of Providence, for defendants, petitioners.

BAKER, Justice.

This is a petition for a writ of certiorari filed by the defendants in the above entitled case. The writ was issued, and the record in question of the superior court was duly certified to this court.

From the petition it appears that the petitioners, six in number, were on February 9, 1940, found guilty by a petit jury of a criminal offense against the laws of this state, after a trial in the superior court upon an indictment returned to that court by the grand jury for the counties of Providence and Bristol. The petitioners were all named in one indictment and were tried together. On March 9, 1940, their motions for a new trial were denied by the trial justice. The attorney general forthwith moved in the superior court, under the provisions of General Laws 1938, chapter 625, § 72, that the petitioners be sentenced by that court, and the trial justice thereupon ordered the petitioners to appear before him on March 16, 1940 for sentence. However, on said March 9, by a written motion which raised on the record a constitutional question, the petitioners requested said court to certify to this court the question whether such sentence could legally be pronounced upon them pending their prosecution of a bill of exceptions. As the ground for such motion it was alleged that § 72, supra, was unconstitutional and invalid in that it was in violation of §§ 8, 10 and 14 of article I of the constitution of this state.

The request for certification was made by the petitioners under the provisions of G.L.1938, chap. 545, § 2, which reads as follows: "Whenever the constitutionality of any act of the general assembly shall be brought in question in the trial of a criminal cause in any court, the decision of the question shall be reserved, and the trial of the case in other respects shall proceed as if the statute were constitutional; and if the defendant shall be found guilty, sentence shall be stayed, and the constitutional question raised, together with a record of the case, and a transcript of the testimony, or so much thereof as pertains to the constitutional question, shall be certified and transmitted forthwith to the supreme court for decision."

On March 11, 1940, the trial justice denied the petitioners' motion that the said constitutional question be certified to this court. On that same day the petitioners at once moved that the same constitutional question be certified to this court under the provisions of G.L.1938, chap. 545, § 1. This motion was forthwith denied by the trial justice on the ground that said § 1, supra, had been repealed by § 1 of an act of the general assembly entitled: "An Act Repealing Section 1 and Amending Section 6 of Chapter 545 of the General Laws of 1938 Entitled 'Certification of Cases to the Supreme Court'", which act had been approved January 26, 1940. The petitioners immediately moved that the question of the constitutionality of said last-mentioned act be also certified to this court, alleging that such act was in violation of §§ 8, 10, 12 and 14 of art. I of the constitution of this state. This motion was likewise denied by the trial justice. Proceedings were then taken promptly in this court by the petitioners. They have not been sentenced as yet by the superior court.

The petitioners allege in their petition that the decisions of the trial justice in connection with the matter of certification were in excess of his jurisdiction, and they pray that this court issue a writ of certiorari to the end that such decisions may be reversed; that the constitutionality of the acts in question may be determined by this court; and that the petitioners may have such other and further relief in the premises as this court may deem appropriate.

In view of the unusual situation presented by the allegations of the petition and after consideration, we ordered the writ to issue, in the exercise of our discretion and under the broad powers vested in this court by the state constitution, by § 1, art. XII of the amendments thereto, which is as follows: "The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity. It shall have power to issue prerogative writs, and shall also have such other jurisdiction as may, from time to time, be prescribed by law. * * *" This jurisdiction has been exercised by this court in many reported cases as occasion required. See Hyde v. Superior Court, 28 R.I. 204, 66 A. 292; State v. Coleman, 58 R.I. 6, 190 A. 791, 109 A.L.R. 787; State v. Sisson, 58 R.I. 200, 192 A. 209.

Further, it is expressly provided in G. L.1938, chap. 495, § 2, that: "The supreme court shall have general supervision of all courts of inferior jurisdiction to correct and prevent errors and abuses therein when no other remedy is expressly provided; it may issue writs of habeas corpus, of error, certiorari, mandamus, prohibition, quo warranto and all other extraordinary and prerogative writs and processes necessary for the furtherance of justice and the due administration of the law * * *."

In view of these provisions, and in the furtherance of justice and the due administration of the law, we issued the writ in the instant cause for the purpose of determining only the fundamental and important constitutional question raised on the record by the pensioners, namely, whether or not § 72, supra, was invalid as being contrary to the provisions of the state constitution.

That section is as follows: "In any criminal case tried in the superior court in which a verdict of guilty is rendered the attorney-general may, at any time after the motion for a new trial, if made, is denied, move for sentence, and the court shall forthwith proceed to sentence such person, but nothing herein shall be deemed to deprive such person from prosecuting a bill of exceptions in accordance with the statutes in such case made and provided, and any person so sentenced may be released upon bail after this filing of written notice of his intention to prosecute a bill of exceptions and upon giving a recognizance with sufficient surety or sureties before said court, in such sum as said court shall deem reasonable, to appear before said court to abide the final order or orders of said court or the supreme court, and the giving of such recognizance shall act as a supersedeas of said sentence until said bill of exceptions be abandoned, denied, overruled or otherwise disposed of in accordance with the statutes in such cases made and provided."

The petitioners have not pressed, in support of their position herein, their contention that the above-quoted section is unconstitutional in that it is repugnant to §§ 8, 10 and 14 of art. I of the constitution of this state. In substance, these sections deal respectively with bail and punishments, with certain rights of one accused of crime, including the right that such person shall not be deprived of life, liberty or property unless by the judgment of his peers or the law of the land, and with the principle that, as every man is presumed innocent until pronounced guilty by the law, no unnecessary act of severity should be permitted. We consider, therefore, that the petitioners have, in effect, waived these contentions.

In their brief, however, they urge that said § 72, supra, is unconstitutional as being in violation of the provisions of section 1 of art. X of the state constitution. This last-mentioned section reads as follows: "The judicial power of this state shall be vested in one supreme...