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Enbinder v. Commonwealth

Supreme Judicial Court of Massachusetts
Apr 3, 1972
281 N.E.2d 863 (Mass. 1972)

Summary

In Enbinder v. Commonwealth, 361 Mass. 871 (1972), we commented on the desirability of having the record of the trial court proceedings before a single justice who is considering a demurrer to a petition for relief under G.L.c. 211, § 3, in order that he may be better informed in deciding whether, in his discretion, he should exercise the extraordinary powers given by the statute.

Summary of this case from Costarelli v. Municipal Court of the City of Boston

Opinion

April 3, 1972.

Sanford A. Kowal for the petitioner.

James X. Kenneally, Assistant Attorney General, for the Commonwealth.


A single justice correctly sustained a demurrer to a petition in the county court brought under G.L.c. 211, § 3, as amended by St. 1956, c. 707, § 1, to review a conviction for larceny in the Municipal Court of the City of Boston. This court, as matter of discretion, seldom will exercise the authority given to it under § 3, especially where another remedy exists. The demurrer to the petition for a writ of error, seeking review of the same conviction, is an unsatisfactory method of dealing with allegations of the type set out in the petition. As matter of discretion, the single justice appropriately should have withheld action on the demurrer until after obtaining a more complete record concerning the Municipal Court proceeding either (1) by requiring an extended return from the Municipal Court judge (cf. Southwick Birds Animals, Inc. v. County Commrs. of Worcester County, 360 Mass. 133, 134, fn. 1, or (2) by taking evidence (directly or through a commissioner) concerning the Municipal Court proceeding. For the purpose of obtaining an adequate basis of fact on which to consider this matter, the order sustaining the demurrer to the petition for a writ of error is to be vacated. The case is remanded to the county court for further proceedings consistent with the views expressed above. The exception to the order with respect to the petition for relief under G.L.c. 211, § 3 (as amended), is overruled, and that petition is to be dismissed in the county court.

So ordered.


Summaries of

Enbinder v. Commonwealth

Supreme Judicial Court of Massachusetts
Apr 3, 1972
281 N.E.2d 863 (Mass. 1972)

In Enbinder v. Commonwealth, 361 Mass. 871 (1972), we commented on the desirability of having the record of the trial court proceedings before a single justice who is considering a demurrer to a petition for relief under G.L.c. 211, § 3, in order that he may be better informed in deciding whether, in his discretion, he should exercise the extraordinary powers given by the statute.

Summary of this case from Costarelli v. Municipal Court of the City of Boston
Case details for

Enbinder v. Commonwealth

Case Details

Full title:AUGUSTA ENBINDER vs. COMMONWEALTH (and a companion case)

Court:Supreme Judicial Court of Massachusetts

Date published: Apr 3, 1972

Citations

281 N.E.2d 863 (Mass. 1972)
281 N.E.2d 863

Citing Cases

Green v. Dolan

Whitmarsh v. Commonwealth, 366 Mass. 212, 215-216 (1974). Enbinder v. Commonwealth, 361 Mass. 871 (1972).…

Enbinder v. Commonwealth

A bill of exceptions to the sustaining of the demurrer was allowed, and we subsequently ordered as follows:…