Two complaints were issued, each charging Fadden (the defendant) with causing the death of the same victim by operating a motor vehicle, in violation of G. L. c. 90, § 24G. The first charged that he operated the vehicle negligently so that the lives and safеty of the public might be endangered; the second charged that he operated it while under the influence of intoxicating liquor. After trial in a District Court he was convicted on the first complaint and the second complaint was dismissed. He appealed to the Superior Court, and now seeks dismissal of the first complaint on the ground of double jeopardy. We uphold the procedure followed in presenting the issue, but deny on the merits the relief sought by the defendant. We order that the rights of the parties be declared accordingly.
The present civil action was brought by the defendant in this court for the county of Suffolk, and was transferred to the Appeals Court by a single justice of this court under G. L. c. 211, § 4A, and Appeals Court Rule 2:01, as amended,
The following facts appear from the pleadings and stipulаtion of the parties. On October 23,1976, the Third District Court of Eastern Middlesex issued four criminal *606 complaints against the defendant, arising out of the same incident on that date. He was charged with homicide by motor vehicle by negligently operating to endanger, with speeding, with driving to endanger, and with operating a motor vehicle under the influence of alcohol. Later he was charged in a fifth complaint with homicide by motor vehicle by operating while under the influence of intoxicating liquor. He moved to dismiss the fifth complaint as duplicitous and as violative of the constitutional prohibition of double jeopardy. On February 11,1977, after trial on all five complaints, the judge ordered the fifth complaint dismissed and found the defendant guilty on the other four complаints.
The defendant appealed to the Superior Court from the four convictions, and there moved to dismiss the remaining complaint for homicide by motor vehicle on the ground that he had previously been placed in jeopardy for the same offense. The motion was denied, and the defendant began the present action.
1.
The remedy.
The defendant framed his complaint in the present action as an application for injunctive relief pursuant to our power of general supеrintendence under G. L. c. 211, § 3, and for declaratory relief under G. L. c. 231A. We have recently held that a criminal defendant who presents a double jeopardy claim of substantial merit is entitled to review of that claim before the second trial "under our general superintendence power.”
Costarelli
v.
Commonwealth,
In the present case the single justice of this court might have exercised the power of general superintendence by deciding the case, or he might have reported it to the full court. Instead, he transfеrred the case to a single justice of the Appeals Court. The single justice of the Appeals Court did not have the benefit of our holding in the Cos *607 tarelli case, and he ruled that the plaintiff could not circumvent the usual avenue of appellatе relief after trial.
Years ago this court upheld the dismissal of a petition for a writ of prohibition in a similar case.
Cronin
v.
Superior Court, 253
Mass. 182, 184 (1925). So far as that decision reflected a view that review of a claim of double jeopardy must be deferred until after trial аnd conviction, it has been superseded by the
Costarelli
case. Once it is decided to allow interlocutory review in a particular case, however, a civil action in the nature of prohibition now seems to be an appropriate modе of proceeding. See Mass. R. Civ. P. 81 (b),
Section 4A of G. L. c. 211, as appearing in St. 1972, c. 740, § 2, permitted a single justice of this court to transfer to a lower court any case or matter which might otherwise be disposed of by the single justice, with stated exceptions. One of those exceptions forbade transfer to any court other than the Appeals Court of "writs of prohibition, or of mandamus to any court other than the supreme judicial court or the appeals cоurt or to a judicial officer thereof.” The quoted language was deleted by St. 1973, c. 1114, § 46, effective July 1,1974, the effective date of Mass. R. Civ. P. 81 (b), and a reference to G. L. c. § 49, § 5, relating to civil actions to obtain relief formerly available by mandamus, was substituted. Wе read the 1973 statute and the 1974 rule as affecting forms of procedure but not the jurisdiction or powers of this court with respect to actions in the nature of mandamus or prohibition. Thus a civil action in the nature of prohibition may still be brought in this court. Seе Washburn *608 v. Phillips, 2 Met. 296, 298-299 (1841). If the action seeks relief from a proceeding in any court other than this court or the Appeals Court, it may be transferred to the Appeals Court under G. L. c. 211, § 4A.
We do not regard it as appropriate to delegate our power of general superintendence to the Appeals Court or to a Justice of that court. In a number of cases a single justice of this court has first denied relief under G. L. c. 211, § 3, and then transferred the case to the Appeals Court. We think the single justicе of this court may in a proper case exercise the power of general superintendence by allowing interlocutory review of a double jeopardy claim of substantial merit and then transfer the case to a single justice of the Appeals Court for decision on the merits of the double jeopardy claim. Compare the statutory procedure for interlocutory appeals under G. L. c. 278, § 28E. Alternatively, he may treat the case as an action to obtain reliеf formerly available by writ of prohibition and transfer it to a single justice of the Appeals Court for evaluation and decision. Where appellate review of a final judgment is entrusted to the Appeals Court, and interlocutory review of a ruling in thе case is appropriate, transfer of the interlocutory review to that court may contribute to an orderly and expeditious disposition.
2.
Parties.
The defendant named the district attorney and the judges of the Superior Court as parties defendаnt in his action in this court. The judges moved to dismiss the complaint. In the brief filed on their behalf, the Attorney General argues that to require the judges to participate in an action of this kind is inappropriate. The naming of judicial defendants as parties follows some of our precedents. See, e.g.,
Kennedy
v.
District Court of Dukes County,
3.
Duplicitous complaints and double jeopardy.
Under G. L. c. 90, § 24G,
1
homicide by motor vehicle may be committed in any one of several ways. One is by negligently operating to endanger; another is by operating under the influence of intoxicating liquor. These two
*610
ways are different, but not mutually exclusive. Thus the defendant could have been charged with both in a single complaint, and he could have been convicted on proof of either or both.
Commonwealth
v.
Dowe,
Instead, the charges were separated into two complaints. The separation should not be allowed to prejudice the defendant. He could not be given consecutive sentences on duplicitous charges.
Kuklis
v.
Commonwealth,
We recognize that the prohibition agаinst double jeopardy in the Fifth Amendment to the Constitution of the United States is applicable to the States.
Benton
v.
Maryland,
As to the charge of motor vеhicle homicide by operating to endanger, however, it was clearly within the power of the District Court judge to anticipate what this court would do in the event of duplicitous sentences: dismiss one charge and affirm the sentence on the other. E.g.,
Kuklis
v.
Commonwealth,
4. Disposition. The motion of the judges of the Superior Court to dismiss the action as to them is allowed. The case is to be treated as a proceeding against the Commonwealth. The judgment оf dismissal entered by the single justice of the Appeals Court is vacated. The case is remanded to the Supreme Judicial Court for the county of Suffolk, where a judgment is to be entered declaring that the proceedings in the District Court do not bar further рrosecution of the defendant in the Superior Court Department on the complaint for motor vehicle homicide by negligently operating to endanger.
So ordered.
Notes
As inserted by St. 1976, c. 227: "Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle in violation of paragraph (a) of subdivision (1) of section twenty-four of chapter ninety, or so operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered, and by any such operation so described causes the death of another person shall be guilty of homicide by a motor vehicle and shall be punished ....”
General Laws c. 90, § 24(l)(a), as amended through St. 1971, c. 1071, § 4: "Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle while under the influence of intoxicating liquor,... shall be punished ....”