
    State of Maine vs. Frank C. Power.
    Knox.
    Opinion November 22, 1923.
    
      The prosecution of a motion for a new trial, addressed to the presiding Justice, and overruled by him, is a waiver of all exceptions in both criminal and civil cases.
    
    Where the crime charged does not amount to a felony such motion can only be heard at nisi prius and exceptions do not lie to the refusal of the presiding Justice to grant a new trial.
    The right to be heard on exceptions, waived by motion for new trial, cannot be revived merely because the motion proves to be ineffectual.
    On motion and exceptions by respondent. A search , and seizure process for intoxicating liquors. The case was tried before a jury and the respondent found guilty. An exception was entered by respondent to a ruling admitting certain testimony; also to a refusal to give requested instructions; also to a ruling overruling a motion in arrest of judgment. Respondent then filed a motion for a new trial which was overruled by the presiding Justice and an exception entered and allowed but not in claiming exception to the overruling of motion for new trial unless the Law Court should determine such ruling exceptionable.
    Motion and exceptions overruled. Judgment for the State.
    The case is fully stated in the opinion.
    
      Z. M. Dwinal, County Attorney, for the State.
    
      Elisha W. Pike and Frank A. Tirrell, Jr., for respondent.
    Sitting: Cornish, C. J., Spear, Hanson, Philbrook, Morrill, Wilson, JJ.
   Philbrook, J.

This case arises under one of the several statutes of this state designed to prevent the illegal sale of intoxicating liquors and is commonly known as a search and seizure case. By virtue of a warrant, based upon a complaint signed and sworn to by a sheriff, and issued by a police court, certain premises, occupied by the respondent were searched and intoxicating liquors found therein. From judgment against him in the police court the respondent appealed to the Supreme Court where trial by jury was had and verdict of guilty returned.

During the progress of the trial exceptions to the admission of certain evidence, and refusal of the presiding Justice to give requested instructions were noted.

After verdict was returned, and on the same court day, a motion in arrest of judgment was fijed, overruled, and exceptions taken to that ruling.

Two days later a motion for a new trial was filed, addressed to the presiding Justice. That motion was heard by him, overruled and exceptions taken to that ruling.

This court has frequently held, both in criminal and civil cases, 'that' the prosecution of a motion for new trial before the presiding Justice is a waive'r of all rights of exception. State v. Simpson, 113 Maine, 27, and cases there cited. Thus the respondent deprived himself of any claim to be heard on any exceptions arising before his hearing on the motion for new trial.

But his exception to the overruling of the motion for new trial has no standing, for it is well-settled law in this state that in criminal cases, where the crime charged does not amount to a felony, such a motion can only be heard at nisi prius, and exceptions do not lie to the refusal of a presiding Justice to grant a new trial, it being a matter addressed to his judicial discretion. State v. Simpson, supra.

The right to be heard on his exceptions, which he deliberately and completely waived when he chose to prosecute a motion for a new trial, cannot be restored merely because his motion proved ineffectual.

Motions and exceptions overruled.

Judgment for the State.  