Opinion
No. 3262.
Decided December 2, 1941.
A petition for habeas corpus alleging the erroneous refusal of a municipal court to grant an appeal and the later refusal to grant a new trial may be amended by the addition of a prayer for the proper relief.
Semble, where a municipal court has jurisdiction of the subject-matter of a complaint and of the parties an error of the court in the conduct of the case is not correctible on habeas corpus.
The right of a respondent to take an appeal from a judgment of guilty by such court may be waived by acquiescence in the court's ruling, as by submission to it without objection and later moving for a new trial.
A respondent is not entitled to withdraw his plea of guilty as a matter of right but this matter is within the discretionary power of the municipal court where no case of accident, mistake or misfortune exists and no abuse of discretion disclosed.
Quaere, whether a respondent's right of appeal is barred by a plea of guilty.
PETITION, for a writ of habeas corpus. Hearing before Burque, C. J., who dismissed the petition subject to the plaintiff's exception.
The petition recites that the plaintiff was delivered to the defendant, who is keeper of the house of correction in Rockingham County upon mittimus dated July 15, 1940, issued by the Municipal Court of Portsmouth; that at a session of that court held on that date the plaintiff was charged with a violation of section 7 of chapter 378 of the Public Laws; that he pleaded guilty to the charge and was sentenced to serve a term of four months in the house of correction; that after sentence was imposed he "requested an appeal to the Superior Court but that such a request for an appeal was denied"; that he later engaged counsel, who filed in his behalf a motion seeking "a new trial of the complaint" in question and asking "that the judgment therein be vacated" and a plea of not guilty be substituted for the plea of guilty on the ground that through accident, mistake or misfortune justice had not been done; and that this motion was denied.
On August 15, 1940, the plaintiff was released on bail pending the transfer and determination of his bill of exceptions.
Sewall, Varney Hartnett and Samuel Levy, for the plaintiff.
Frank R. Kenison, Attorney-General, and Stephen M. Wheeler, Solicitor, for the defendant.
Since in the case of State v. Coan the municipal court had jurisdiction of the parties and the subject-matter of the prosecution, it is doubtful if any error committed by the Municipal Court in the conduct of that case can be corrected upon habeas corpus. State v. Towle, 42 N.H. 540; State v. Shattuck, 45 N.H. 205, 211; Kruzas v. O'Dowd, 83 N.H. 173, 175. If, however, "the refusal to grant the appeal was erroneous, a remedy might probably be had" by the institution of some "other proceeding" (State v. Towle, supra, 546), and inasmuch as the petition could properly be amended by the addition of a prayer for the appropriate relief (Kruzas v. O'Dowd, supra) it is deemed advisable to consider briefly the questions which the plaintiff seeks to raise.
The jurisdiction conferred upon municipal courts in criminal cases is granted "subject to appeal" (P. L., c. 323, s. 15), and in the case of Philpot v. State, 65 N.H. 250, 251, 252, it is said that in cases "triable in the lower court" (with an exception not here material) a defendant's "right of appeal is not barred by a plea of guilty."
The cases cited in support of this conclusion (Commonwealth v. Hagarman, 10 Allen 401; Commonwealth v. Winton, 108 Mass. 485; Commonwealth v. Mahoney, 115 Mass. 151) hold in substance that after the appeal has been entered in the Superior Court the plea cannot be withdrawn without leave of that court, and that failure to assign a reason in support of a request to withdraw the plea "leaves nothing to be done but to pass sentence" (Commonwealth v. Mahoney, supra).
It is unnecessary, however, to determine the correctness of the dictum in Philpot v. State or the extent to which the rule of the Massachusetts cases would be followed here, since the plaintiff, having acquiesced in the court's ruling, is in no position to complain that his request for an appeal was denied. So far as appears, he submitted to the ruling without objection and then proceeded to move for a new trial. Nor, after the denial of that motion, did he renew his request for an appeal. Under these circumstances he must be held to have waived whatever right to an appeal he may have had. 4 C. J. S. 396.
Nor was he entitled to withdraw his plea of guilty as a matter of right. 2 Bishop, New Crim. Pro. (2d ed.), s. 747. It was within the discretionary power of the Justice of the Municipal Court to grant or deny his request. State v. Cotton, 24 N.H. 143, 146. No facts are recounted in support of the allegation of accident, mistake or misfortune, and no abuse of judicial discretion is disclosed. See 14 Am. Jur. 960-962; Annotations, 20 A.L.R. 1445, 1454, and 66 A.L.R. 628, 638.
Exception overruled.
BURQUE, J., did not sit: the others concurred.