dissenting in part.
While I concur in the result, I do not join in the majority opinion, because, in connection with the discussion of procedure therein, I do not assent to its statement “that the doctrine of waiver under such circumstances does not apply in felony cases.”
For many years it has been well-established law in this state, both in misdemeanor and felony cases as well as in civil case procedure, that where an exception is taken to a refusal by the presiding justice to direct a verdict for the defendant and later, after verdict, a motion is addressed to the presiding justice to set the verdict aside, the exception is waived. State v. Simpson, 113 Me., 27, 92 A., 898 (misdemeanor); dictum in State v. Davis, 116 Me., 260,101 A., 208 (felony); State v. Di Pietrantonio, 119 Me., 18, 109 A., 186 (felony); State v. Power, 123 Me., 223, 122 A., 572 (misdemeanor); Mills v. Richardson, 126 Me., 244, 137 A., 689 (civil case); State v. O’Donnell, et als., 131 Me., 294, 161 A., 802 (felony); Symonds v. Free Street Corp., 135 Me., 501, 200 A., 801, 117 A. L. R., 986 (civil case); Inhabitants of Fort Fairfield v. Inhabitants of Millinocket, 136 Me., 426, 12 A., 2d, 173.
Until now this court has made no distinction in this respect between misdemeanors and felonies. With reference to both, *258decision has been that the filing of the motion after verdict addressed to the presiding justice constitutes a waiver of the exception to the refusal to direct a verdict. The majority opinion adheres to this principle as to misdemeanors, denies it as to felonies, and takes no position, as it was not necessary to take such, with reference to civil cases. With relation, however, to civil cases, I think the latest pronouncement of this Court may be found in Inhabitants of Fort Fairfield v. Inhabitants of Millinocket, supra, on page 428, where the court said:
“The exception taken to the denial of the defendant’s motion for a directed verdict and the general motion for a new trial raise the same question. That exception must be regarded as waived.”
Also, as to waiver by motion for new trial, it is stated in Sec. 351 of 4 C. J. S., on page 769:
“With respect to waiver by implication the general rule is that a party cannot make a motion for a new trial based on points raised by his bill of exceptions without waiving the exceptions, or, at least without expressly reserving them.”
The annotator states in 17 A. L. R., on page 929: ,
“And in Maine, it has been held that the refusal of the court to direct a verdict in favor of the accused is waived by the filing of a motion to set aside the verdict, the reason being that the same question, i.e., the sufficiency of the evidence, is raised by both,” citing the Simpson, Davis, and Di Pietrantonio cases, supra.
The O’Donnell case, supra, had not then been decided.
The effect of the majority opinion is to overrule the decisions on the point here discussed in State v. Di Pietrantonio, supra, and State v. O’Donnell et als., supra, both felony cases in which the opinions, written by former Chief Justices of this Court, were signed unanimously by the members of the Court.
*259The reason advanced for overruling these cases is that in felony cases there is a statutory right of appeal to the Law Court from the refusal of the presiding justice to set the verdict aside, while formerly there was none; but the statute giving the right of appeal was enacted prior to the decisions above cited. It is not to be assumed that this statute was not then considered by the Court.That it was not overlooked in theDiPietran-tonio case, supra, is clear, because in the opinion specific mention is made of it. So, too, in the Simpson case, supra. Although the Simpson case related to a misdemeanor rather than a felony, the court stated broadly: “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 waiver of all rights of exception ... and the practice is now well settled.” (Italics mine.) While the statement was dictum as to other than misdemeanors, yet it evidences the then opinion of the court that there was no distinction as to waiver between felonies and misdemeanors as now held by the majority of this Court.
The reason for waiver given in the decision in the Simpson case, supra, is stated in these words:
“The only ground on which the verdict could be set aside was that the evidence was insufficient to support it; which was the precise point raised in the first request (meaning motion to direct a verdict for the respondent). If the evidence was sufficient the direction of a verdict had been properly refused. If the evidence was insufficient the verdict should have been ordered. It follows therefore that exactly the same question was presented to the determination of the presiding Justice by the motion, which would have been presented to the Law Court, on the first exception, and having failed on the motion the respondent cannot now be allowed to revive his exceptions and seek another tribunal.”
Chief Justice Cornish, who had written the opinion in the *260Simpson misdemeanor case, supra, also wrote the opinion in the Di Pietrantonio felony case, supra, and in the latter said: “The exception to the refusal of the court to direct a verdict in favor of the respondent was waived by the filing of the motion to set aside the verdict after it was rendered. Precisely the same question was raised by both,” citing the Simpson case and also State v. Davis, supra, which, by way of dictum in a felony case, had followed State v. Simpson, supra.
The reasoning in these cases cited would seem to be as sound now as then in holding that the conduct of the defendant in presenting the same question a second time to the same presiding justice constituted a waiver of the exception taken to the former ruling. By such conduct he abandoned his right to prosecute his exception previously taken.
In the Simpson case, supra, two exceptions went to the Law Court, the first one being to the refusal of the presiding justice to direct a verdict for the defendant and the second to the refusal of the presiding justice to set the verdict aside. Both exceptions were overruled.
As to the first exception the Court said on page 28,113 Me., page 899 of 92 A.:
“Had the respondent stood upon his legal rights in prosecuting that exception he could have brought the case to the Law Court, and obtained its decision and opinion as to the sufficiency of the evidence. But subsequently the respondent abandoned that remedy and that course of procedure, and sought the decision and opinion of the presiding Justice upon precisely the same question. He filed a motion asking the presiding Justice to set aside the verdict.”
The second exception was overruled as the court said on page 29,113 Me.:
“... because, as we have already said, exceptions do not lie to the refusal of a presiding Justice to grant a new *261trial, it being a matter addressed to his judicial discretion.”
This language was used in connection with a misdemeanor case, but the fact that in felony cases there is a right of appeal from the refusal of the presiding justice to set the verdict aside makes it nonetheless an abandonment or waiver of an exception taken to the previous ruling of refusal to direct a verdict. It is the adoption of the second procedure after verdict, whether single- or double-barrelled, that works the waiver. The fact that in felony cases the defendant has two bites at the cherry, first in having the presiding justice hear his motion to set the verdict aside and second, right of appeal from his decision, instead of having to rely only upon exceptions to the decision of the presiding justice refusing to direct a verdict, makes the adoption of such procedure, with right of appeal added, nonetheless a waiver of the exception to the refusal to direct a verdict.
The waiver takes place when the motion to set the verdict aside is filed, not later when it is ruled upon. The filing of the motion evidences the intention to abandon and is the conduct founding the waiver.
“The exception ... was waived by the filing of the motion to set aside the verdict after it was rendered.” State v. Di Pietrantonio, supra, on page 19 of 119 Me., page 187 of 109 A.
“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.” State v. Power, supra, on page 224 of 123 Me., page 572 of 122 A.
“Filing the motions operated as a waiver of exceptions to the refusal to direct verdicts ...” (Italics mine.) State v. O’Donnell et als., supra, on page 295 of 131 Me., page 803 of 161 A.
*262The respondent, upon, refusal of the motion to direct a verdict, had an option then to take and prosecute his exception before the Law Court? or later, after verdict of guilty, to file a motion to set it aside. As stated in the Simpson case, supra: “He must exercise his option and take one course or the other. He cannot take both. And having exercised his choice he is bound by the result.”
A right abandoned or waived cannot be regained. Libby v. Haley, 91 Me., 331, 333, 39 A., 1004. Here it is claimed that the respondent, not appealing from the refusal of the presiding justice to order a new trial, as he had the right to appeal (instead thereof he excepted, a right not given by statute), could then, as a result of his own error of procedure, resort to the right of exception which theretofore he had abandoned and waived. No such right of resurrection of a dead exception is given by statute or otherwise, but such is now given in the case of a felony under this majority opinion.
An important element in the doctrine of waiver is intention to waive. It is not, however, a secret intention but “the intention to be gathered from the language and conduct of the party.” Smith v. Phillips National Bank, 114 Me., 297, 302, 96 A., 217. But even if here the actual intention were to be discovered, would not the fact that there is in felony cases a statutory appeal from the refusal of the presiding justice to order a new trial make it all the more likely that there exists an actual intention to abandon the exception, for there would be not only the right to-have the same question passed upon by the presiding justice on the motion for a new trial but to have the Law Court review that decision? The fact that in the case of a felony there is a statutory right of appeal, it would seem, therefore, instead of tending to indicate an actual intention to retain the exception, would naturally and with good reason indicate quite the contrary, for if by appealing he could have decision by the Law Court upon the latter ruling of the presiding justice, it would be futile and absolutely unnecessary then to prosecute his exception, where both the exception and the *263appeal raise the same question. The fact that after the decision by the presiding justice denying a new trial he does not appeal but erroneously excepts to that ruling does not alter the situation. It doesn’t seem logical nor legally possible that a right once lost by voluntary election can be revived by the possessor’s own later procedural error. It is not a case of conditional waiver but one absolute.
In the majority opinion it is stated: “Since the granting of appeals in all felony cases, however, it has become established practice for the court to consider felony cases on both appeal and exceptions.” And then is cited a list of cases. I think, however, an examination of these cases shows that in only three of them, namely, State v. Brown, 118 Me., 164, 106 A., 429; State v. Mulkern, 118 Me., 477, 105 A., 177, and State v. Rogers, 125 Me., 515, 132 A., 521, was an exception taken to the refusal to order a verdict. In all the other cases the exceptions were to rulings of the presiding justice that had to do with the admissibility of evidence, instructions given to the jury or refused to be given, or as to conduct of the trial, none of which raised the same question before the Law Court as that raised in the appeal. This I consider quite different from an exception to a refusal to order a verdict and an appeal from a refusal of a presiding justice to order a new trial, in both of which the same question is raised, which fact is instrumental in establishing the waiver.
Furthermore, all of the cases mentioned differ from the instant case in that in the latter no appeal was taken.
In the Brown, Mulkern, and Rogers cases, supra (the Mul-kern case up on exceptions to refusal to order a verdict, to grant a motion in arrest of judgment, and on appeal under R. S. 1916, Chap. 136, Sec. 28, and the Rogers case up on exception to refusal to order a directed verdict and on motion for new trial on the ground of newly discovered evidence), while the exception was overruled in each case, there was no discussion of procedure, that is, as to whether the exception was properly presented, while in all of the cases hereinbefore mentioned in this *264opinion where there was discussion it was unanimously held that because of waiver such exception could not properly come to the Law Court, and the latest expression to that effect in felony cases is found in State v. O’Donnell, supra, a recent case succeeding the Brown, Mulkern, and Rogers cases, supra.
The fact referred to in the majority opinion, that in many cases where waiver has been held, the Court, nevertheless, has. reviewed the merits, in no way affects the reasoning of its decision on the doctrine of waiver. Here in this case we could, if we saw fit, adopt the same practice without overruling well-established law. This practice I prefer to follow. The applicability of Chap. 86 of P. L. 1941 I do not discuss for I do not deem it necessary.
So I concur in the result, but for reasons stated, do not sign the majority opinion.