123 Me. 340 | Me. | 1923
The defendant Cole was the only one interested in this proceeding. The facts pertinent to the issue may be taken from the defendant's motion for a new trial, namely: "Now comes the defendant, Harry M. Cole, in the above entitled case, after verdict against him, sentence imposed, appeal to the Law Court and the judgment of the law court against him, but before mittimus has issued, and moves for a new trial . . . ., because of newly discovered evidence.''
It is unnecessary to quote further as the decision of the case turns upon a question of law. The defendant was arraigned upon the indictment, tried and convicted at the January Term of Court, 1922. After conviction • he filed and addressed a motion to the presiding
Reverting to the contention of the defendant that inasmuch as his motion was filed before the mittimus was issued his case should be differentiated from the case where the motion was filed after such issue, it is pertinent to add, that the judgment of the Law Court went into effect as soon as it was certified to the clerk of the Law Court and by him certified to the Clerk of Courts where the indictment was pending. In this case, assuming that the certificate was transmitted by due course of mail from Bangor to Rockland, it must have been received on the 25th- or 26th of February. When received the certificate should have been at once recorded and mittimus thereupon issued. Breton, Petitioner, 93 Maine, 39. That the issue of the mittimus was delayed until the April Term of court did in no respect affect the force of the judgment of the Law Court. Breton, Petitioner, 93 Maine, 39, is a case in which the defendant was apprehended and committed in vacation, upon a mittimus furnished by the clerk of courts upon a sentence which ran concurrent with the sentence which had just expired.
The effect of the action of the clerk in issuing a mittiums on the second sentence is stated as follows:
“The Court omitted to state what sentence should be served first, and whether either should succeed the other. The mittimus is only a transcript of the minutes of the conviction and sentence duly certified by the clerk. The clerk has no power to control the effect of the sentences of the Court by changing the time of issuing the mittimus.”
It accordingly follows that the fact that the clerk did not issue the mittimus when the judgment of the Law Court went into effect but delayed until the next term of court could in no way affect the force of the judgment of the Law Court.
We are not criticising the clerk, however, for, upon an examination of the statutes and the law we do not wonder that he may have been confused as to just what to do.
Judgment for the State.