362 Mass. 552 | Mass. | 1972
This case is before us on an interlocutory report of a question under G. L. c. 278, § 30A, inserted by St. 1954, c. 528. On January 24, 1968, a complaint was filed in the First District Court of Eastern Middle-sex in Malden charging that on January 4, 1968, the defendant “being a corporation engaged in construction work, did require or knowingly permit ... a person employed by it in such work to use certain devices commonly called stilts, designed to be attached to the feet or legs of such employee for the purpose of elevating him to high placed or positioned work,” in viola
On September 13, 1968, the case was transferred from the Superior Court to the Third District Court of Eastern Middlesex at Cambridge for trial by a jury of six persons.
The report stems from a motion filed by the defendant on November 1, 1971, to dismiss the complaint on the grounds that G. L. c. 149, § 129B, as amended, (a) violates art. 12 of the Declaration of Rights of our Con
We assume, despite the form of the question reported, that the basic decision which the judge and the parties would like to obtain from this court is whether G. L. c. 149, § 129B, is constitutional. Before reaching that important question, we feel compelled to consider whether this is an appropriate situation for the exercise of the power conferred by G. L. c. 278, § 30A, to report interlocutory questions of law, in criminal cases for decision by this court. Resort to the history of this statute will shed light on this point.
It is well settled that “[t]he authority of a judge of . . . [an inferior court] to report questions of law for the decision of the full court is wholly the creature of statute.” Commonwealth v. Cronin, 245 Mass. 163, 164, and cases cited. With this premise, the opinion in the Cronin case, decided in 1923, continued (p. 165) : “The only right to report in criminal cases is found in G. L. c. 278, § 30, and is expressly confined to instances where a person has been convicted. This court has no jurisdiction to decide an interlocutory question arising in
On the basis of the record before us and the history and language of G. L. c. 28, § 30A, we hold that this is not an appropriate case in which to require this court to answer a question of constitutional proportions before the case has been decided on its merits. About four years and nine months have now gone by since the complaint was first issued. Within two weeks after the complaint issued the defendant was found guilty and appealed to the Superior Court. The record is absolutely silent as to what, if anything, occurred in the latter court except that about seven months after taking the appeal the defendant elected to take the case to a second forum — to a District Court for a trial by a jury of six. The record shows no action in the second forum of the defendant’s choice for the next three years and three months except for ten continuances and the filing of a motion to dismiss the complaint, all followed by the report to this court and the
“Interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing.” John Gilbert Jr. Co. v. C. M. Fauci Co. 309 Mass. 271, 273. Bendslev v. Commissioner of Pub. Safety, 328 Mass. 443, 445. This test is not met in the present case where an interlocutory decision by this court might avoid the necessity of holding what would appear to be a very short trial which the parties have already avoided for almost five years.
“Where conducive to justice, a court may set aside a stipulation made by the parties.” Commonwealth v. Clarke, 350 Mass. 721, 722. See Boring v. Mercier, 318 Mass. 599. In our opinion, this is such a case. Accordingly, we set aside the stipulation, discharge the report, and remand the case to the Third District Court of Eastern Middlesex for further proceedings.
So ordered.
Section 129B as thus amended reads as follows: “Whoever, being engaged in construction work, requires or knowingly permits any person employed by him in such work to use certain devices, commonly called stilts, designed to be attached to the feet or legs of such employee for the purpose of elevating him to high placed or positioned work, shall be punished by a fine of not more than one hundred dollars for the first offense, by a fine of not more than five hundred dollars for the second offense, and by a fine of not more than one thousand dollars for any subsequent offense.”
Presumably this transfer was made by authority of the following provision contained in St. 1964, c. 628, as amended by St. 1966, c. 360, § 1; St. 1969, c. 253, § 1; and St. 1971, c. 659, § 1, authorizing trials by a jury of six in certain District Courts of Middlesex County: “Any defen dant_ found guilty in any district court of Middlesex county of . . . [specified misdemeanors] who has appealed to the superior court may, at any time before trial on such appeal, claim a trial by a jury of six in the third district court of eastern Middlesex.” These same statutes further provide that a defendant whose case is pending in a District Court for trial by a jury of six “may elect to waive a jury of six.” See now G. L. c. 218, § 27A, inserted by St. 1972, c. 620. The net effect of these statutes is that a defendant convicted of most misdemeanors has multiple options open to him for further trial. He may have a trial de nova in the Superior Court before a jury of twelve or before a judge, or he may have a trial de nova in the District Court before a jury of six or before another judge of that court. These broad options encourage “forum shopping” and often result in two independent trials before different District Court judges. This may even lead to the situation where the defendant is given separate trials before judges of the same District Court.
The introductory sentence of the stipulation states that the parties “agree that the following facts may be introduced into evidence pertaining to and as basis for defendant’s motion to dismiss.” The difficulty in determining whether such language is an agreement on facts or merely on evidence is discussed at length in Frati v. Jannini, 226 Mass. 430, and in Scaccia v. Boston Elev. Ry. 308 Mass. 310.
No question has been raised about the authority of a judge of a District Court presiding over a session of that court for trials of misdemeanors by a jury of six persons to report a (question of law for decision by this court. Although § 30A refers to trials “in the superior court,” we note that the several statutes which relate to the trial of misdemeanors in District Courts by a jury of six and which are cited in footnote 2 above provide that the judge presiding over such a session “shall have and exercise all the powers and duties which a justice of the superior court has and may exercise in the trial and disposition of such cases.” The same statutes further provide that review after such a trial by a jury of six “may be had directly by the supreme judicial court, by a bill of exceptions, appeal, report or otherwise in the same manner provided for trials by jury in the superior court.”