Opinion
Opinion, June 30, 1933.
PLEADING AND PRACTICE. COURTS.
In a criminal cause a motion for a new trial on the ground of newly discovered evidence, filed in the Superior Court after the mandate of the Appellate Court had finally ended the original case, is without avail. In such instance the Superior Court has no jurisdiction.
On exceptions. A motion to vacate a judgment of conviction of crime in the Superior Court, because of fraud and perjury on the part of the complaining witness at the trial. The motion set forth new evidence discovered since the rendition of the judgment. To the refusal of the presiding Justice to entertain the motion, the petitioner excepted. Exception overruled. The case sufficiently appears in the opinion.
Harvey D. Eaton, for petitioner.
H. C. Marden, County Attorney, for the State.
SITTING: PATTANGALL, C. J., DUNN, STURGIS, BARNES, THAXTER, JJ.
At the trial, on an indictment for crime, exceptions were saved. After a jury verdict of guilty, sentence was imposed, notwithstanding the exceptions, as the statute requires. R. S., Chap. 146, Sec. 26. The respondent moved the trial court (the Kennebec Superior Court), at a term subsequent to the certification by the Law Court of its rescript overruling the exceptions and awarding judgment for the State ( 131 Me. 458, 164 A. 198), to vacate, set aside, and declare the conviction and sentence (which is still being served) to be without force and effect.
The motion alleged newly discovered evidence that, in certain of his testimony, the principal witness for the government committed perjury. Consideration of the motion was ruled unauthorized. The correctness of that ruling is the sole subject at issue.
The ruling was free from legal error. Not having been filed until after the mandate of the appellate court had finally ended the original case, the motion was too late. A revocation of the conviction and sentence would have been in a court having no jurisdiction. Seventeenth Rule of Court, 129 Me. 503; State v. Cole, 123 Me. 340, 122 A. 871. See, too, State v. Mallios, 129 Me. 482, 149 A. 626.
Exception overruled.