State v. Weiner

• Decision Date: 02 April 1964
• Docket Number: 645,Nos. 644,s. 644
• Citation: 97 R.I. 506,199 A.2d 120
• Parties: STATE v. Louis J. WEINER (two cases). C. Q.
• Court: Rhode Island Supreme Court

Page 120

199 A.2d 120

97 R.I. 506

STATE v. Louis J. WEINER (two cases).

C. Q. Nos. 644, 645.

Supreme Court of Rhode Island.

April 2, 1964.

J. Joseph Nugent, Atty. Gen., Corinne P. Grande, Special Counsel, for the State.

Anthony Grilli, Anthony E. Grilli, Providence, for defendant.

CONDON, Chief Justice.

These criminal complaints were certified by a justice of the superior court to this court for our determination of a question of law of doubt and importance pursuant to G.L.1956, § 9-24-27. The certification was ordered on the motion of the attorney general on behalf of the state.

According to the jacket record of each complaint the trial justice heard the state's motion on October 4, 1962 and granted it. There is another jacket entry on October 24, 1962 entitled 'Order entered certifying cause to Supreme Court and case including all papers etc. is hereby certified and transmitted to Clerk of Supreme Court. Calvert E. Casey[,] Clerk.' Among the papers in either case there is no order of certification of any specific question of law signed by the trial justice.

However, among the papers in C. Q. No. 644 (C.A. No. 36918) is a motion by the attorney general bearing a file mark dated October 24, 1962 and entitled 'Motion To Certify Question To Supreme Court,' which states the question as follows: 'Is Gambling Evidence Seized In A Dwelling House Under And By Virtue Of A Federal Search Warrant Legally Admissible In The State Courts of Rhode Island Although Said Federal Search Warrant Fails To Conform With The Provisions Of 11-19-24 Of The General Laws of 1956 Entitled 'Issuance Of Search Warrants For Gambling Apparatus?'' This paper bears the following notation: 'Motion Granted: Mackenzie, J. 10/23/62.'

Apparently that motion was submitted to the justice of the superior court the day before it was filed in the office of the clerk. It does not appear either from the jacket entries on each complaint or from the papers in each case that on October 4, 1962 or on October 23, 1962 there was any matter before the justice for a ruling or decision by him other than the attorney general's motion to certify. On the state of the record in each case it would appear that the trial justice must have assumed that the attorney general's motion in and of itself was sufficient to warrant certifying the question propounded.

This court has heretofore consistently held to the contrary. Easton v. Fessenden, 63 R.I. 11, 6 A.2d 714; Murray v. Taylor, 43 R.I. 5, 109 A. 565; Tillinghast v. Johnson, 34 R.I. 136, 82 A. 788, 41 L.R.A.,N.S., 764. In Easton we held the certification improper and pointed out 63 R.I. at page 13, 6 A.2d at page 714, in what respect it was lacking, as follows: 'What hearing, if any, was had before the justice who granted the motion does not appear of record. It may well be that he granted it upon...