Sylvester v. Commonwealth

• Decision Date: 10 July 1925
• Citation: 253 Mass. 244,148 N.E. 449
• Parties: SYLVESTER v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 244

148 N.E. 449

SYLVESTER

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Middlesex.

July 10, 1925.

Report from Supreme Judicial Court, Middlesex County.

Writ of error by Lawrence Sylvester against the Commonwealth of Massachusetts to reverse a judgment convicting and sentencing plaintiff in error, and praying that he be discharged from custody. On report by a single justice. Judgment affirmed.

C. W. Rowley, of Boston, for plaintiff.

A. C. York, Asst. Atty. Gen., for the commonwealth.

CROSBY, J.

This is a writ of error brought by the plaintiff in error (a minor) by his father and next friend, and is before us on a report of a single justice of this court.

The plaintiff in error was brought before the Third district court of Eastern Middlesex February 4, 1922, upon a complaint alleging that he is a boy between the ages of seven and seventeen years, that he is a delinquent child, and that he did break and enter in the daytime a certain building with intent to commit larceny, and did steal therein $20, the property of one Wenckevicz. After hearing, he was adjudged to be a delinquent child and was ordered to make restitution in a certain amount. The case was continued from time to time, and on April 21, 1923, he appeared in court and was ordered committed to the Lyman School for Boys.

The report recites that the single justice found as a fact that before the trial the complaint was read to the plaintiff in error by the court; that no formal plea thereto was made or entered of record, but an informal plea of not guilty was made by the plaintiff in error; and that thereafter the trial proceeded. The single justice further found that at the trial no witnesses were sworn or affirmed to testify; that evidence was received from the complainant; and that no testimony on oath or affirmation was received.

The assignment of errors, a copy of which was inserted in the scire facias alleges that the conviction, sentence and confinement are unlawful for the following and other reasons: That they were in violation of the Thirteenth and Fourteenth Amendments to the federal Constitution; that the plaintiff could not be lawfully convicted without the testimony of witnesses under oath; that he was not notified of this right to appeal; and that he could not be sentenced to confinement at the Lyman School for Boys during his minority, as such term would be in excess of the maximum penalty for the crime of breaking and entering.

The defendant in error demurred to the assignment of errors upon the following grounds: ‘(1) That said assignment of errors discloses no invalidity in said proceedings; (2) that the exclusive remedy of the petitioner was by appeal’-and without waiving its demurrer, answered to the petition and pleaded ‘in nullo est erratum.’ By the demurrer it admits the truth of the assignment of errors of fact so far as they are legally assignable, and that the record is true as to the assignment of errors of law, while denying that either is sufficient to reverse the judgment. Perkins v. Banags, 206 Mass. 408, 92 N. E. 623.

The statute, G. L. c. 119, §§ 52-64, under which the plaintiff in error was committed, relates to delinquent children, and expressly provides in section 56 that:

‘A child adjudged a wayward child or delinquent child may appeal to the superior court, and such child shall, at the time of such adjudication, be notified of his right of appeal.’

If the plaintiff in error was not notified...