New Britain herald., 1927-08-19
SACC0 LOSES fight
| IN MASSACHUSETTS

merits that they have been deprived
/ of their constitutional rights to a
trial by judges as free and impair
| tial as the lot Of humanity will
admit. BY the common law as
amended by the statute OF 1922 a
motion for a new trial in capital
/ cases comes too late If made after
sentence has been pronounced. It
is within the limitation expressed in
! the statute.
| I'VE now come to so much OF this
motion as asked for a revocation of
sentence. The proceedings already
referred to before the motion was
! filed when reviewed showed no error
of law and cases We're ripe for sem
! tence or Judgment, The jurisdiction
OF the trial court ended under the
statute of 1922 when the defend
/ ants were committed in execution.
An application for such revision
| Emotion for revision OF sentence) is
like motion for a new trial Com
monwealth V. Lobel. The defend
ants therefore have failed to show
error. The judicial conduct of the
trial Judge in hearing and deciding
the motion based on his own alleged
bias or prejudice, although urged
in argument by counsel for the de-
PENDANTS, need not be discussed.
because, as we have Just said,
| neither the judge nor any of his
| associates had jurisdiction to enter
| tain the motion.
Prejudice Denied
The second case is a petition for
writ of error filed in this court
August S, 1927. 1t was heard and
| denied, subject to the petitioners
exception, by single justice of the
petition which contained the follow
| ing assignments OF error:
-. 1t appears from the affi-
| davits filed and made a part OF the
record of said cause in the superior
! court that the Honorable Webster
| Thayer, the justice of said court who
presided over the trial of said cases
and who subsequently passed upon
| various motions with respect there
to, was so prejudiced against your
| petitioners and their counsel from
| the time of the beginning of said
trial to and throughout the hearings
and rulings upon said motions that
your petitions have not had such a
trial as that to which they are en-
titled under the constitutions of the
| commonwealth of Massa chusetts and
Of the United States of America. and
! that they have not had such a trial
as constituted due process of law
within the meaning OF the fourteenth
amendment to the federal constitu-
ton, nor a trial by a Judge "as free
impartial and Independent as the
lot of humanity will admit" as re-
quired by article xxx of the declar-
alton Of the rights of the inhabi-
tants OF the commonwealth of
Massachusetts,.
"'2. 1t appears from the record
of the proceedings. including the
substance Of all the material evil
dence offered at the trial, that the
finding of the jury was plainly
wrong.
80. It appears from the record
Of the proceedings, including the af-
tidavits filed in support of the several
motions for a new trial, that the
findings Of fact made by the pre-
siding judge in passing upon the Pc
titioHers' several motions for new
trial are plainly wrong
1T is provided by the common
law as amended by the statutes of
1925 that In capital cases a writ of
error shall not issue unless allowed
by justice Of this court after no.
tice given to the attorney general or
other attorneys of the common
wealth.
The wording of the statute Is
clear and must be construed as
meaning that the issuance of a writ
OF error In a capital case rests in the
sound judicial discretion of the sin
gle justice to whom the application
is presented. If we were to decide
otherwise, the plain intention of the
legislature to discourage and prevent
unnecessary delay would be defeated.
This appears in note Is of the draft
revision Of chapter 112 on the pro-
posed revised statutes, on page 224
in the report Of the commissioners
to revise the general statutes of the
commonwealth in 1884 Our system
of criminal procedure in criminal
cases makes ample provision for the
protection of the rights OF those who
are charged with the commission of
crime, by exceptions, by motion for
a new trial before sentence has been
passed and by petition for a discre-
tionary writ of error either before or
after sentence. 1t furthermore may
be said that the assignment of En-
rors of facts not being connected
with questions of jurisdiction is not
open on the present record.
The case OF Hall V. Thayer. 1O5
Mass, 21a, and kindred cases which
depend on statutes expressly limiting
the jurisdiction of the court are
Distinguish BILE. 1t is not commended
by the petitioners that the single
justice abused his powers or that his
action was arbitrary and uniustif-
able. The petition was rightly de
MED.
The third and last case is a Pc
tition filed Aug. 1G, 1927 addressed
to the full court for writ of error
coram nobis. Prior 10 the enact
ment OF the revised statutes our sta