Weiner v. Wentworth

181 Mass. 15 | Mass. | 1902

Lathrop, J.

If we assume, without deciding, that a petition for a writ of mandamus is the appropriate proceeding in a case like this, we are of opinion that the ruling of the single justice of this court denying the petition was right.

The St. of 1893, c. 396, which revises and consolidates the laws relating to district and police courts, in § 47, provides: “ Every person convicted of an offence before a district or police court may appeal from the sentence to the Superior Court then next to be held in the county. The appellant shall be committed to abide the sentence of said court until he recognizes to the Commonwealth, in such reasonable sum and with such surety or sureties as the court requires, with condition to appear at the court appealed to,” etc.

The St. of 1894, c. 431, § 1, makes all the provisions of the St. of 1893, c. 396, apply to all police, district and municipal courts in the county of Suffolk, except the Municipal Court of the City of Boston. But by § 2 of said chapter it is provided that the Municipal Court of the City of Boston shall have all of the civil and criminal jurisdiction conferred upon police and district courts by the provisions of §§ 12-53, both inclusive, of the St. of 1893, c. 396, in addition to the present jurisdiction of that court. Section 47 of the act above cited therefore applies. See also Pub. Sts. c. 154, §§ 39, 43. By § 62 of the same chapter, “ The court shall be held for criminal business daily, except on Sundays and legal holidays, at nine o’clock in the forenoon.”

The section in regard to an appeal does not state when the appeal is to be taken, and the question in this case is whether a person convicted has the entire day in which to take his appeal, or whether it should be taken before he is committed to serve his sentence.

The question of the seasonableness of the appeal is to be determined not only by the duration of the sitting of the court but by other provisions of the statutes. By the Pub. Sts. c. 215, § 25, “ When a person convicted of an offence is sentenced to pay a fine or costs or be imprisoned, . . . the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county, or to some officer in court, a transcript from the minutes of the court of such conviction and sentence, duly certified by such clerk, which shall be a sufficient authority for the officer to execute such sentence, and he shall execute it accordingly.”

On the authority of the statute just cited, it was said in Commonwealth v. Hayes, 170 Mass. 16, “An ordinary sentence of fine or imprisonment imports that it is to be carried into execution forthwith.” It is also to be observed that by the St. of 1893, c. 396, § 48, upon an appeal the court has the same authority to bind by recognizances the witnesses in such a case as it has by the Pub. Sts. c. 212, when a prisoner is admitted to bail or committed. These provisions are contained in §§ 36-40, and give the court power to bind by a recognizance the principal witnesses against the prisoner to appear and testify at the next court having cognizance of the offence.

If the person convicted has the entire day in which to take his appeal, this provision of statute would be rendered of no avail, for the court has no authority to detain the witnesses until it is determined whether an appeal is to be taken.

These considerations have led us to the conclusion that the appeal in this case, taken after the mittimus had been issued and the prisoner had been removed from the court and had begun to serve his sentence, was taken too late. See State v. Epperson, 4 Mo. 90.

Exceptions overruled.