State v. Power
| Decision Date | 22 November 1923 |
| Citation | 122 A. 572 |
| Parties | STATE v. POWER. |
| Court | Maine Supreme Court |
Exceptions and Motion from Supreme Judicial Court, Knox County, at Law.
Prank C. Power was found guilty of violating liquor laws. On defendant's exceptions and motion for new trial. Motion and exceptions overruled, and judgment for State.
Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ.
Z. M. Dwinal, Co. Atty., of Camden, for the State.
Elisha W. Pike and Frank A. Tirrell, Jr., both of Rockland, for respondent.
This case arises under one of the several statutes of this state designed to prevent the illegal sale of Intoxicating liquors and is commonly known as a search and seizure case. By virtue of a warrant, based upon a complaint signed and sworn to by a sheriff, and issued by a police court, certain premises occupied by the respondent were searched and intoxicating liquors found therein. From judgment against him in the police court the respondent appealed to the Supreme Court, where trial by jury was had and verdict of guilty returned.
During the progress of the trial, exceptions to the admission of certain evidence and refusal of the presiding justice to give requested instructions were noted.
After verdict was returned, and on the same court day, a motion in arrest of Judgment was filed, overruled, and exceptions taken to that ruling.
Two days later a motion for a new trial was filed, addressed to the presiding justice. That motion was heard by him, overruled, and exceptions taken to that ruling.
This court has frequently held, both in criminal and civil cases, that the prosecution of a motion for new trial before the presiding justice is a waiver of all rights of ex ception. State v. Simpson, 113 Me. 27, 92 Atl. 898, and cases there cited. Thus the respondent deprived himself of any claim to be heard on any exceptions arising before his hearing on the motion for new trial.
But his exception to the overruling of the motion for new trial has no standing, for it is well-settled law in this state that in criminal cases, where the crime charged does not amount to a felony, such a motion can only be heard at nisi prius, and exceptions do not lie to the refusal of a presiding justice to grant a new trial; It being a matter addressed to his judicial discretion. State v. Simpson, supra.
The right to be heard on his exceptions, which he deliberately and completely waived when he chose to prosecute a motion for a new...
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State v. Bobb
...adjudicated later passed upon and decided by a separate and distinct tribunal. This rule of waiver has been affirmed in State v. Power, 123 Me. 223, 122 A. 572, involving misdemeanor; State v. DiPietrantonio, 119 Me. 18, 109 A. 186; State v. O'Donnell, 131 Me. 294, 161 A. 802, and State v. ......
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Palleria v. Farrin Bros. & Smith
...no longer applicable by virtue of statutory changes cited in Labbe v. Cyr, supra. The next case to be considered is that of State v. Power, 123 Me. 223, 122 A. 572. This was a search and seizure process for intoxicating liquor, a misdemeanor. The jury returned a verdict of guilty. Exception......
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Labbe v. Cyr
...we do not feel ourselves bound by that dictum. The rule of Cole v. Bruce, supra, was reaffirmed in an analogous situation in State v. Power, 123 Me. 223, 122 A. 572. The court made no analysis of the underlying reasons for the rule and, insofar as the Power case applies to the waiver of all......
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Donnell v. Smith
... ... rule in equity practice and procedure that, in order to avoid further litigation, where all parties in interest are before the court, and the power of the chancellor has been sought by the pleadings in a given case to establish their rights, the decree may be so framed as to give affirmative ... ...