Lanni v. Superior Court

Sweetland, C. J. The first of the above entitled proceedings is a petition setting out that the petitioner is now unlawfully restrained and deprived of his liberty in the ■state prison by the wai’den thereof; and praying for a writ ■of habeas corpus to issue to said warden, directing him to produce the petitioner before this court to be discharged from such restraint. The second of the above entitled proceedings is a petition for a writ of mandamus to be directed to the Superior Court ■commanding it to fix the time within which the petitioner should file a bill of the exceptions taken by him in connection with an indictment against him entitled, “State v. .John Lanni, Indictment No. 12303”, now in the files of that court. The two petitions have been heard together before us. At the hearing it was made to appear that in April, 1924, an indictment was returned charging the respondent with committing an assault with a dangerous weapon. That on April 9, 1924, he was arraigned upon the indictment and pleaded not guilty. • On February 9, 1925, the respondent was permitted to retract his plea of not guilty and plead nolo contendere. The indictment was continued to July 6, 1925, for sentence. On July 6, 1925, it was further continued, and on November 9, 1925, a justice of the Superior *160 Court denied the respondent's motion for leave to withdraw the plea of nolo contendere and to plead not guilty. To this ruling .of said justice the respondent excepted immediately. The justice then, notwithstanding the exception, sentenced the respondent to the state prison for eighteen months. Upon mittimus the respondent was committed, and is now restrained by the warden in said prison. *161 *160 The contention of the respondent is that the justice was; without authority to impose sentence before this court had passed upon the respondent's exception to the ruling upon, his motion to be permitted to change his plea; and that it-was the duty of the justice to fix a time for filing the respondent’s bill, in order that the exception might be presented to us for determination. The respondent’s motion was addressed to the judicial discretion of the justice and the ruling of the justice will not be reversed by us unless it clearly appears that it was arbitrary and amounts to an abuse of discretion. The respondent asserts that in the-circumstances presented at the hearing the justice did abuse-his discretion, and that there should be a review of the ruling. In the exercise of its revisory jurisdiction this court-will consider such claim. The first question presented by these petitions is whether the respondent is entitled to come-here under the statutory provisions for a review by bill of exceptions. He relies particularly upon Section 10, Chapter 348, General Laws, 1923, which provides as follows: “Sec. 10. Exceptions to rulings, directions, and decisions-made during a hearing in a cause heard by the court without a jury or during a trial by a jury shall be taken immediately”. A consideration of the language of Section 10-alone, furnishes support for the respondent’s contention that he was thereby given the right to take the exception in question. The respondent further contends that the right-to take the exception involves the right to have such exception brought before this court upon a bill of exceptions, although there has been no verdict of conviction rendered against him. The soundness of the latter contention de *161 pends upon the statutory provisions for bringing exceptions to this court. We are ordinarily without jurisdiction to consider exceptions to the rulings of the Superior Court except upon bill of exceptions duly filed in that court and then certified to us. Bills of exceptions may be filed in the Superior Court only (1) after verdict, (2) after notice of decision, which decision is that rendered in a civil case tried by the Superior Court without a jury, as the word “decision” is defined in Section 20, Chapter 338, General Laws, 1923, and (3) after notice of decision upon a motion for new trial. (Sec. 17, Chap. 348, G. L. 1923). Our conclusion is that under the statute it is only after a verdict of conyiction, or after the denial of his motion for a new trial, that the respondent in a criminal case is permitted to file a bill of exceptions. By availing-himself of the permission to enter a plea of nolo contendere this respondent waived his right to go to trial, and thereby waived whatever right he may have had to have his exceptions to rulings of the Superior Gburt considered here upon a bill of exceptions. The respondent calls our attention to the opinion in Valentine v. Knox, 45 R. I. 429, in which the court considered an exception to a ruling of the Superior Court made after judgment in a civil case. In the consideration of that case the court was confronted with a fine of cases, in which question as to the propriety of the practice had not been raised, and the court had passed upon such an exception. The court in view of that line of precedents, although with hesitation, permitted the use of a bill of exceptions, but expressly stated that such action should not be regarded as a precedent for any further extension of the use of a bill of exceptions beyond that specifically set down in the statute. The refusal of the Superior Court to fix a time for filing a bill of exceptions was without error. The petition for writ of mandamus is therefore denied. Although we will not review the rulings in question by bill of exceptions we will under our revisory power consider *162 the respondent’s claim of an abuse of discretion. We have been given by the constitution and the statute broad powers of review. The court has held that in the exercise of those powers it may use prerogative writs and processes in their accepted forms or it may adapt or modify them. Hyde v. Superior Court, 28 R. I. 204. There is no prerogative writ at common law which in its regular accepted form and according to the accepted practice under it is exactly appropriate to bring the 1’espondent’s objection before us. We will not refer him to any other extraordinary writ or process for relief. His petition for a writ of habeas corpus now pending furnishes an expeditious and convenient proceeding in which the respondent’s objection may be considered. The function of a writ of habeas corpus is not generally that of a writ of error. In the exercise of our power to adapt and modify the accepted forms of writs and processes when such modification serves for the correction of errors and abuses in inferior tribunals and for the furtherance of justice, we will, in the circumstances of this case in the absence of an ordinary remedy, hear the respondent’s objection to the ruling of the justice upon his petition for the writ of habeas corpus. On November 30, 1925, at the regular session of the court we will permit the respondent to amend his petition and set out as further ground for the writ his objection to the ruling in question. We will also at that session hear his counsel and the attorney general, representing the warden, upon the merits of said objection, as the same may appear upon the record which the respondent has brought before us.