In Re Lanni , 47 R.I. 158 ( 1925 )

I am obliged to dissent from the majority opinion holding that the petitioner is not entitled to take an exception to the ruling of the Superior Court denying his motion for leave to withdraw his plea of nolo contendere, and to prosecute a bill of exceptions based thereon to this court.

It appears in the record that the petitioner pleaded nolocontendere to an indictment in the Superior Court. Before sentence was imposed he filed a motion for leave to withdraw said plea of nolo and enter a plea of not guilty. This motion was heard and denied by the court to which ruling the petitioner immediately took an exception, which was noted. Petitioner was then sentenced, against his objection, to the state prison and committed.

Petitioner having taken said exception duly proceeded to prosecute a bill of exceptions to this court under authority of § 5125, Gen. Laws, 1923, which states: "Any person or party who has taken exceptions in the superior court may prosecute a bill of exceptions to the supreme court by taking the following procedure". Petitioner made no default in the procedure necessary to perfect his bill of exceptions. Petitioner was authorized to take his exception by the following section of the General Laws, 1923, "§ 5117, Sec. 9. The accused in a criminal proceeding, and any party to a civil action, or any person interested in a probate or other appeal, pending in the superior court, tried by a jury, aggrieved by any ruling, direction, or decision of the superior court upon any matter of law or upon a motion for a new trial, may except thereto". This section should receive a liberal construction.

In Thrift v. Thrift, 30 R.I. 357, 359, the court said: "Statutes in furtherance of the simple and convenient administration of justice are deemed remedial, and are to be liberally construed". The court was considering its authority to review questions of law which may arise in the trial of divorce cases, brought before it by a bill of exceptions, and was of the opinion that a bill of exceptions was the appropriate remedy. In considering its jurisdiction over bills of exception the court said, p. 360, "This method of presenting questions of law for determination, being familiar and simple, when available, should be preferred to extraordinary and more complicated ways of reaching the same result". The remedy by bill of exceptions is familiar, simple and convenient. It has even been used to obtain the review of rulings and decisions of the Superior Court made after the entry of judgment. Valentine v. Knox, 45 R.I. 429, and cases cited. See also Paine v. Paine, 43 R.I. 478. In the case at bar defendant's exception was made and noted before sentence.

I am of the opinion that under the law above quoted, the petitioner should be permitted to prosecute his bill of exceptions to this court, and have a transcript of the evidence, with the rulings thereon, duly allowed and filed, as requested by him, to the end that the alleged error may be reviewed by this court.

The majority opinion gives the petitioner an opportunity to amend his petition for a writ of habeas corpus in order that he may now have his objection to the ruling of the Superior Court heard and determined. The petitioner's exception is based upon the evidence introduced at the hearing upon his motion. In habeas corpus it is contrary to the general rule to review the sufficiency of the evidence to sustain the charge upon which the prisoner is held. 29 C.J. 46. Ex parte Antoscia, — R.I. (1915), 94 A. 871, was a petition for a writ of habeas corpus. The court held that the petition was defective in form, and gave the petitioner an opportunity to amend his petition, but said: "It seems, however, not improper now to suggest that, when a prisoner in custody under a sentence of conviction seeks discharge by habeas corpus, it is generally held to be well settled that inquiry under the writ is limited to the question of whether the court in which the conviction and sentence took place had jurisdiction in the premises, and also as to the validity of the sentence or process on its face; and that there can be no inquiry into the sufficiency of the evidence to support the conviction, or to review the rulings of the trial court".

For these reasons I am of the opinion that the relief sought by the petitioner should be granted.