State v. Cushing

11 R.I. 313, 1873 R.I. LEXIS 1

• Court: Supreme Court of Rhode Island
• Decided: July 19, 1873
• Status: Published

Opinions

Our statute, Gen. Stat. R.I. cap. 210, § 8, authorizes the court to grant a new trial in a criminal case, provided application therefor shall be made within one year after such case shall have been tried or decided. The indictment, TheState v. Edward J. Cushing, was tried to a jury in the Court of Common Pleas, in 1870-71, a verdict of guilty being returned January 1, 1871. A petition for new trial, entered in this court October Term, 1871, was heard October Term, 1872, and decided March Term, 1873, by dismissal. The petitioner thinks the decision was erroneous, and moves for leave to reargue the petition. It would be idle to reargue the petition merely to convince the court of its error. The motion is doubtless intended to have an effect beyond this, namely, to have us grant the mover a new trial of the indictment. It is in this view an application for a new trial, made more than five years after the cause was tried on the indictment, and more than two years after it was decided on the petition. It does not come within the statute, even if the word "decided," in the statute, is held to mean decided on the petition.

It appears that the counsel for the petitioner appeared before the chief justice and two other justices of this court, after the March Term, 1873, was ended, and requested them in vacation to authorize him to notify the attorney general and the Court of Common Pleas that they would hear him at the next term, upon the question whether he had a right to be heard upon a motion for a reargument of the petition for a new trial, and whether the motion should be granted, and that the justices granted the request. It also appears that the counsel afterwards filed in the office of the clerk of this court, fully and formally, the grounds of the motion, and served a copy on the attorney general, with notice that he was ready to argue the same, to which the attorney general replied that he could not then attend to it. The paper filed with the clerk was not a motion for leave to reargue, but the grounds of such a motion. If, however, it could be regarded as a motion, it never was docketed as such, and never was entered by the payment of the requisite entry fee. It appears to have had the effect to delay sentence in the Court of Common Pleas, but we do not see how we can now regard it as a motion which has been pending ever since the paper was left with the clerk.

Perhaps we might have taken off the entry in the petition for a new trial at any time during the term at which the petition was decided, and heard it reargued upon an oral motion merely; but after the term was past we think we could only do it, if at all, upon written motion preferred, at farthest, within a year after the petition was decided.

For these reasons, therefore, unless the objections stated can be obviated, the motion for reargument must be denied.