Commonwealth v. John Dowdican's Bail , 115 Mass. 133 ( 1874 )

Gray, C. J.

The questions of law presented by the record in this action are not properly before us. The Superior Court has been authorized by the legislature to send up questions of law te this court in the form of a report, only in cases in which a, verdict has been, or, if the trial should be completed, would be, rendered When the case is submitted to the Superior Court on a waiver of a jury trial, on the award of an arbitrator, or on an agreed statement of facts, that court is required to hear and determine it; and the jurisdiction of this court is purely appellate, after a decision below, and not advisory, by way of instructions to that court in advance how to perform the duty which the law has imposed upon it. Gen. Sts. c. 114, § 10; c. 115, §§ 6, 7. St. 1869, c. 438. Lincoln v. Parsons, 1 Allen, 388. Bearce v. Bowker, ante, 129. Hogan v. Ward, ante, 130 note.

G. W. Searle, for the defendants,

contended that the effect of an order to lay an indictment on file was the same as a sentence, final judgment, or nolle prosequi ; that the circumstances that the orders, laying the three last indictments on file, also ordered the payment of costs, necessarily ended the case ; and that under the Gen. Sts. e. 171, § 28, where the party injured filed an acknowledgment of satisfaction, an order that upon payment of costs the indictment be laid on file, was equivalent to an order that all further proceedings be stayed, and the defendant discharged from the indictment; that the entry by the judge, “ Chapter 86 of General Statutes having been repealed, this case is now laid on file,” was conclusive on the Commonwealth as to the case having been brought under said chapter, and that the certificate of Fose, J., was a finding, that the prisoner had already suffered sentence for the same offences charged in said second and third indictments, and that the order to lay on file was a final order and decree which could not be altered after the end of the term in which it was made; and to this last point cited Commonwealth v. Weymouth, 2 Allen, 144; Jobe v. The State, 28 Ga. 235; Van Dyke v. The State, 22 Ala. 57; Brush v. Robbins, 3 McLean, 486 Rex v. Fletcher, Russ. & Ry. 58; People v. Duffy, 5 Barb. 205 ; Rex v. Hunter, 1 Wils. 163.

In some cases in the books, this rule, not having been insisted on by either party, has been overlooked by the court. But the number of cases irregularly transmitted to this court without any decision below has lately increased so much, to the serious embarrassment of the performance of the appropriate duties of this court as a court of error, as to demand a strict and vigilant adherence to the statutes by which the jurisdiction of both courts is defined. .Report dismissed.

The case being submitted to the Superior Court on the above facts, Putnam, J., ordered judgment for the Commonwealth, and the defendants appealed.

C. R. Train, Attorney General, (W. G. Colburn, Assistant Attorney General, with him,) for the Commonwealth.

Gray, C. J.

It has long been a common practice in this Commonwealth, after verdict of guilty in a criminal case, when the court is satisfied that, by reason of extenuating circumstances, or of the pendency of a question of law in a like case before a higher court, or other sufficient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and of the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file; and this practice has been recognized by statute. Sts. 1865, c. 223; 1869, c. 415, § 60. Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance, by which the case is put out of court; but is a mere suspending of active proceedings in the case, which dispenses with the necessity of entering formal continuances upon the dockets, and leaves it within the power of the court at any time, upon the motion of either party, to bring the case forward and pass any lawful order or judgment therein. Neither the order laying the indictment on file, nor the payment of costs, therefore, in any of the four cases, entitled the defendant to be finally discharged.

The erroneous reason assigned for that order in the first case had no greater effect. The indictment was founded on c. 87 of the Gen. Sts., which has never been repealed. Commonwealth v. Carpenter, 100 Mass. 204. Commonwealth v. Bennett, 108 Mass. 30,

In the case of the indictment for an assault, the acknowledgment of satisfaction by the party injured did not entitle the defendant to be discharged. The provision of the Gen. Sts. c. 171, § 28, is that “ the court may, on payment of the costs accrued, order all further proceedings to be stayed, and discharge the defendant from the indictment.” It is within the discretion of the court, and not within the power of any private person, to determine whether it is consistent with the ends of justice to suspend or terminate the prosecution.

All the cases being still pending, the Superior Court was authorized to bring them forward and order new recognizances. The new recognizances were' therefore lawfully taken. Basset v. United States, 9 Wallace, 38.

The principal defendant not having appeared when called in each case, but having been defaulted, the court was not required to decide in his absence the questions raised by the motions in arrest of judgment. Commonwealth v. Andrews, 97 Mass. 543. Anon. 31 Maine, 592. The default was a breach of the recognizances, and fixed the liability of the bail.

Judgments for the Commonwealth.