284 Mass. 367 | Mass. | 1933
This is a petition to establish exceptions taken at a hearing on a petition for a writ of mandamus. The facts are not in dispute. They are set forth in the petition except certain dates shown by the court record. The petitioner was convicted of murder in the first degree by verdict of a jury rendered in the Superior Court on May 24, 1932. The case came before this court on appeal on assignment of errors (282 Mass. 401) and, no error being found, it was ordered that there be judgment on the verdict. Thereafter the petitioner was sentenced to death on April 18,. 1933, and the sitting of the Superior Court at which that sentence was imposed came to an end on May 1, 1933. On June 9, 1933, the petitioner offered for filing in the Superior Court a motion for a new trial. On the same day it was presented to the trial judge, who refused to receive or consider it and declined to direct the clerk of the court (he having refused to file it) to receive it for filing, and ruled that the motion was not properly before him. The trial judge refused to allow an exception to or an appeal from that ruling. The grounds alleged in that motion related chiefly to newly discovered evidence touching the insanity of the petitioner, a defence discussed when the case was here- on appeal. On the same day the petitioner also presented to the trial judge a motion for revocation of the sentence on substantially the same grounds as those set forth in bis motion for a new trial. On this motion the trial judge made a notation that if properly before him it was denied. The petitioner having claimed an exception and an appeal, the trial judge made a further ruling that he would not accept the motion, or order the clerk of the court to accept it for filing (he having refused to file it), and ruled that the motion was not properly before him for consideration. Thereupon, the petitioner filed a petition for a writ of man-
The present petition to establish those exceptions was thereupon brought. The Commonwealth filed a motion to dismiss the petition on several grounds.
The motion for revocation of sentence in the circumstances here disclosed is like a motion for new trial. It is a misnomer as applied to the grounds alleged. If filed at the same sitting when sentence was imposed, or before final judgment after rescript, and directed to error of fact or law, it may have pertinency. But it is not relevant to the facts here disclosed. It is governed by the same principles as is the motion for a new trial and need not be separately considered. Commonwealth v. Lobel, 187 Mass. 288. Commonwealth v. Sacco, 261 Mass. 12, 15. Commonwealth v. Phelan, 271 Mass. 21. See Commonwealth v. Marrelli, 266 Mass. 113, 116.
Mandamus is not a writ of right but is awarded in the exercise of sound judicial discretion. It is an extraordinary remedy. It may be invoked to redress wrong when no other relief is open. No notice ought to issue when it appears that justice does not demand resort to it. Crocker v. Justices of the Superior Court, 208 Mass. 162, 164-165. Ex parte Skinner & Eddy Corp. 265 U. S. 86, 96.
It is provided by G. L. (Ter. Ed.) c. 278, § 29, that the
Thus it appears that no question of law not already settled by authoritative decisions is shown on this petition. It is a petition to be dismissed on motion. Commonwealth v. Vallarelli, 273 Mass. 240, 247, and cases collected.
Petition dismissed.