COMMONWEALTH vs. SANTOS RODRIQUEZ.

COMMONWEALTH vs. SANTOS RODRIQUEZ.

333 Mass. 501

December 5, 1955 - February 2, 1956

Hampden County

Present: QUA, C.J., WILKINS, SPALDING, WILLIAMS, & WHITTEMORE, JJ.

The twenty day period after verdict provided for claiming an appeal under G. L. (Ter. Ed.) c. 278, Section 33B, cannot be extended, and this court had no jurisdiction of a case where the claim of appeal was filed by the defendant in the Superior Court after the expiration of that period although within an extended time purportedly allowed by the trial judge; c. 211, Section 11, as amended, relative to late entry of cases in this court was inapplicable.

INDICTMENT, found and returned on May 7, 1954.

The case was tried in the Superior Court before Murray, J.

Walter A. Swift, (John J. O'Connor with him,) for the defendant.

Walter J. Griffin, Assistant District Attorney, (Stephen A. Moynahan, District Attorney, with him,) for the Commonwealth.

SPALDING, J. At the threshold lies a question of jurisdiction which must be noticed. Following his conviction for murder in the second degree, the defendant attempted to bring the case here by appeal under G. L. (Ter. Ed.) c. 278, Section 33B. Since this was an indictment for murder it was subject to Sections 33A-33G of c. 278 and the case was appealable under Section 33B. That section provides that one desiring to appeal "shall, within twenty days after verdict," file his claim of appeal. The verdict here was returned on December 14, 1954, but the claim of appeal was not filed until March 16, 1955, more than three months later. True, on December 29 the judge allowed the defendant's motion to extend the time for claiming an appeal to January 17, and on January 10 a motion to further extend the time until March 17 was allowed. But these purported extensions were

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of no effect. The time requirement within which an appeal may be taken under Section 33B is mandatory (Commonwealth v. McKnight, 289 Mass. 530 , 538, 540), and could not be extended either by consent of the parties or by the court. See Attorney General v. Barbour, 121 Mass. 568 , 573; Humphrey's Case, 226 Mass. 143 ; Boston v. Santosuosso, 308 Mass. 202 , 209, construing a similar provision governing equity appeals. See also Golden v. Crawshaw, 302 Mass. 343 , with respect to appeals from the Probate Courts.

The defendant recognizes that his appeal may not have been seasonable and has presented to this court a petition for a late entry of the appeal, presumably under G. L. (Ter. Ed.) c. 211, Section 11, as amended. But that section has no application to a situation of the sort here involved. That section applies only to the late entry of a case in this court; it does not empower us to permit a late appeal. The defendant's difficulty is not that his case has been entered late in this court but rather that he has not seasonably claimed an appeal. Where a party has not claimed an appeal seasonably in an equity case or in a case in the Probate Court he may, upon showing accident or mistake, petition this court for leave to appeal late. G. L. (Ter. Ed.) c. 214, Section 28; G. L. (Ter. Ed.) c. 215, Section 15. But there is no similar provision with respect to appeals under Section 33B. It follows that the appeal is not rightly here and that this court has no jurisdiction over the case. Attorney General v. Barbour, 121 Mass. 568 , 573. Humphrey's Case, 226 Mass. 143 , 145. Golden v. Crawshaw, 302 Mass. 343 . We might add that a careful examination of the record reveals no error in the conduct of the trial.

Appeal dismissed.

Petition for late entry denied.