State v. Hersey , 107 Me. 527 ( 1911 )

The re-script states as follows : "The defendant was indicted for violation of Revised Statutes, chapter 127, section 1. A trial by jury resulted in a verdict of guilty, whereupon defendant filed a motion for a new trial which was denied by the Justice presiding at the trial. The papers before this court are an attested copy of the indictment, an attested copy of a bill of exceptions and a printed record comprising the evidence and the charge of the presiding Justice. No copy of the motion for new trial is found.

Frank A. Morey, County Attorney, for the State. George G. Wing, for defendant.

"The bill of exceptions alleges a denial by the court of the motion for new trial and excepts thereto.

"For many years prior to the year 1883, motions for new trial ill criminal cases were addressed to the presiding Justice whose decision, as at common law, was final: State v. Hill, 48 Maine, 241; State v. Gilman, 70 Maine, 329, 333. In that year an appeal from the denial of a motion for new trial by the Justice before whom the motion is heard was given to respondent in cases where conviction had been had of an offense punishable by imprisonment for life and the concurrence of but three Justices is necessary to grant such motion. Revised Statutes, chapter 135, section 27. In 1909 section 27 was amended by adding the following : "But in all other criminal cases amounting to a felony, where like motion is filed and appeal taken to the law court the concurrence of a majority of the justices shall be necessary to grant such motion” .... Public Laws, 1909, chapter 184. It is thus seen that whatever the right of defendant to review the action of the presiding Justice it must be sought by appeal, that the case is not properly before this court and must be dismissed from its docket.

"It may be said that assuming the motion to have been a general motion for new trial and to be properly before this court on exceptions, an examination of the evidence and the instructions to the jury reveals no error in the action of the Justice hearing the motion. Case dismissed from the law docket.”