Klous v. Judges of Municipal Court of City of Boston

• Decision Date: 24 February 1925
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BENJAMIN KLOUS & another v. JUDGES OF THE MUNICIPAL COURT OF THE CITY OF BOSTON.

251 Mass. 292

BENJAMIN KLOUS & another v. JUDGES OF THE MUNICIPAL COURT OF THE CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 24, 1925

November 14, 1924.

Present: RUGG, C.

J., BRALEY, PIERCE & WAIT, JJ.

Prohibition, Writ of. Jurisdiction. Municipal Court of the City of Boston. Jury and Jurors. Practice, Criminal, Grand jury proceedings Dismissal of complaint. Constitutional Law, Due process of law. One, who was a defendant in a complaint in a municipal court under G.L.c.

266, Sections 30, 60, for larceny and for receiving stolen goods, and who afterwards was indicted by a grand jury for the same offences, petitioned for a writ of prohibition to enjoin the judge of the

Municipal Court from dismissing the complaint by reason of the indictment. A demurrer to the petition was sustained and the petitioner alleged an exception. Held, that

(1) Whether prohibition was a proper remedy was not determined; (2) The circumstance that the Municipal Court had concurrent jurisdiction with the Superior Court of the crimes charged did not compel the Municipal Court to take full jurisdiction;

(3) It has been the custom, in instances where an indictment has been found for the same offence as that described in a pending complaint against the same defendant, or a graver offence, for the district court not to try the complaint;

(4) It was not beyond the jurisdiction of the respondent to dismiss the complaints pending before him by reason of indictments having been returned charging the same crimes;

(5) No constitutional right of the petitioner was thereby violated.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk on April 22, 1924, for a writ of prohibition enjoining the respondents from dismissing certain complaints against the petitioners by reason of the petitioners having been indicted by the grand jury for the same offences as were described in the complaints.

The respondents demurred. The demurrer was heard by Carroll, J., who ordered that it be sustained. The petitioners alleged an exception.

L. Marks, (N.

Haffer with him,) for the petitioners.

M. Caro, for the respondents.

RUGG, C.J. This is a petition for a writ of prohibition against the justices of the Municipal Court of the City of Boston. To that petition a demurrer was filed on various grounds. An order was entered sustaining the demurrer. The petitioners' exceptions bring the case here.

The facts alleged in the petition are in brief that complaints were made against each of the petitioners in the Municipal Court of the City of Boston, one for larceny of personal property under G.L.c. 266, Section 30, and one for receiving stolen goods under G.L.c. 266, Section 60, and that the petitioners were on April 7, 1924, severally arrested upon warrants issuing on these complaints and admitted to bail; that the complaints were continued for trial until April 16, 1924; that on April 10, 1924, the grand jury for Suffolk County found and returned to the Superior Court indictments against the petitioners for the identical offences described in the complaints, and the petitioners were arrested on warrants issued pursuant to the indictments on April 17, 1924; that on April 17, 1924, by order of a judge of the Municipal Court the complaints pending in that court were, against the objection of the petitioners, continued to April 24, 1924, the judge ruling that he would dismiss the complaints by reason of the indictment for the same crimes pending in the Superior Court. The prayer of the petition is that, since the Municipal Court of the City of Boston and the Superior Court have concurrent jurisdiction of the offences charged, the petitioners have a right to require the Municipal Court to proceed to trial of their cases, and that that court be prohibited from dismissing the complaints.

It has not been argued that prohibition is not a proper remedy. It is assumed in favor of the petitioners, but without so deciding, that they have not invoked this writ without right. Goulis v Judge of Third District Court of Eastern Middlesex, 246 Mass. 1 , 8, and cases there collected. Tehan v. Justices of the Municipal Court of Boston, 191 Mass. 92 . See Crocker v. Justices of the Superior Court, 208 Mass. 162 .

The circumstance that the Municipal Court of the City of Boston has concurrent jurisdiction with the Superior Court, of the crimes charged does not compel the former tribunal to take full jurisdiction. It might in its discretion commit or bind over the petitioners as defendants for trial in the Superior Court. G.L.c. 218, Section 30. Commonwealth v. Rice, 216 Mass. 480. It was said in Commonwealth v. Cody, 165 Mass. 133 , 136: "the pendency of an indictment is no ground for a plea in abatement to another indictment in the same court for the same cause. Commonwealth v. Drew, 3 Cush. 279. Nor is it ground for a plea in bar. Commonwealth v. Berry, 5 Gray, 93. Nor for a motion in arrest of judgment. Commonwealth v. Murphy, 11 Cush....