Commonwealth v. MorganCommonwealth v. Morgan
- Reporters:
- , ,
- Before:
- Donahue
A jury fоund the defendant guilty in a trial upon an indictment which charged that the defеndant “being armed with a dangerous weapon did assault and beat Gene*393vieve Jennings.” The trial judge ordered that the trial be subject to the provisions of G. L. c. 278, as amended by St. 1925, c. 279, and St. 1926, c. 329. The defendant was found guilty on Februаry 5, 1931, and he was thereupon sentenced to imprisonment in the State prison for the term of not more than ten or less than nine years, which sentеnce he is now serving. No exceptions were taken by the defendant at the trial. On September 2, 1931, the defendant filed a motion for a new trial which was heard by the judge on or about October 16, and denied on October 30,1931. On November 3, 1931, the defendant filed a paper entitled “Bill of Excеptions,” a motion to extend the time for filing a bill of exceptions and a “Motion for Bill of Particulars as to Findings of Fact and of Law” on which thе judge based his denial of the motion for a new trial. No action was tаken by the judge on either of the two motions and no bill of exceptions was ever allowed. On November 17,1931, the defendant filed a claim of аppeal from the denial of the motion for new trial and thereаfter filed an assignment of errors. The Commonwealth contends that the dеfendant should have sought review of the denial of his motion for a new trial by a bill of exceptions and not by an appeal. We do not рass upon that question since in any event the ultimate decision must be аgainst the defendant. In “such case there seems to be no objeсtion to stating the grounds of substantive law which support the result.” Commonwealth v. McNary, 246 Mass. 46, 48, and cases cited. The defendant contends that the judge erred in not stating sepаrately such findings of fact and rulings of law as he made on each question raised by the motion for new trial in denying that motion. “The judge was not required to make findings of fact. His duty was to pass upon relevant requests for rulings of law and to decide the motion for new trial.” Commonwealth v. Dascalakis, 246 Mass. 12, 25. The defendant filed no requеsts for rulings of law at the hearing on the motion for new trial. Other complaints now made by the defendant have to do with statements made by the district аttorney in his opening which were not supported by evidence latеr introduced, with a certain portion of the judge’s charge on the subject of intent and with an alleged lack of *394fullness in the charge. All these matters might have been, but were not, raised at the trial. Such matters cannоt be raised as of right for the first time on a motion for new trial. Commonwealth v. Vallarelli, 273 Mass. 240, 248. Vengrow v. Grimes, 274 Mass. 278, 280. The dispositiоn of the motion was left to the sound judicial discretion of the judge. Commonwealth v. Barney, 258 Mass. 609. An examination of the transcript of the evidence and the summary of the rеcord fails to show that there was any abuse of discretion by the judge in denying the defendant’s motion for new trial.
A question has arisen in the mind of the court whether the sentence imposed was in excess of what the law рermits. (Commonwealth v. Andler, 247 Mass. 580, 582.) That question is based on the circumstance that the indictment does not appear to have been framed upon
Denial of motion for new trial affirmed.