COMMONWEALTH vs. RICHARD I. LUDWIG.

KAPLAN, J. This is one of a series of cases in which the defendant's counsel, representing a number of clients, has sought to test the constitutionality of the Commonwealth's "two-tier" or "trial de novo" system, [Note 1] a procedure by which those accused of certain offenses may be

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tried first in a District Court without a jury, and, if convicted there, may secure a fresh trial, to a jury, at the next higher court level. See G. L. c. 278, Section 18.

We need to refer here to one of the prior proceedings. In Whitmarsh v. Commonwealth, 366 Mass. 212 (1974), app. dism. 421 U.S. 957 (1975), Whitmarsh was tried in a District Court on a charge of operating a motor vehicle while under the influence of intoxicating liquor; he moved at the outset for trial by jury; the motion was denied. On trial he was found guilty. He appealed to the Superior Court where he would be entitled to a trial de novo with a jury. He moved in that court to dismiss, insisting on the invalidity of the procedure from the start. Pending decision of the motion, he filed a so called "interlocutory appeal" in this court for Suffolk County asking a declaration that the two-tier system was unconstitutional, and an injunction against further prosecution of the criminal charge. A single justice of this court denied the injunction and reserved and reported the case. We held that the "interlocutory appeal" could not be maintained, and we declined exercise of extraordinary power under our superintendency statute, G. L. c. 211, Section 3. But "in view of the nature of the question which . . . [Whitmarsh] attempted to raise and in view of the fact that . . . [Whitmarsh's] counsel appears determined to raise the same question in other cases" (id. at 218), we undertook to state our opinion on the claimed infractions of constitutional rights -- the right to a speedy trial under the Sixth Amendment, the right to jury trial under the Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights, and the guaranty against double jeopardy under the Fifth Amendment. We held each of these claims to be untenable. Id. at 218-228.

In holding that the "interlocutory appeal" was not available, we indicated how a final decision might be obtained that would be subject to regular appellate review. We said, "If his motion were denied [i.e., Whitmarsh's motion in the Superior Court to dismiss], and if

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he were thereafter tried in the Superior Court and found guilty . . . [Whitmarsh] would have available to him an opportunity for appellate review of the ruling on his motion as a matter of right by saving and perfecting exceptions thereto." (Id. at 216.) Counsel followed that line in the present case. Here the defendant Ludwig, charged in the District Court of Northern Norfolk with driving to endanger (G. L. c. 90, Section 24 [2] [a]), moved for a jury trial, which the judge denied; the defendant was then found guilty. In the de novo proceeding in the District Court of Northern Norfolk, Six Man Jury Session (similar for present purposes to a de novo proceeding in the Superior Court, see G. L. c. 278, Section 18), the defendant moved to dismiss, claiming among other things that the court lacked "jurisdiction" because of the improper refusal of a jury at first instance. The motion was denied over due exception, and the defendant was fined $20. Imposition of sentence was stayed, and the case is before this court on a bill of exceptions, as amended, which in effect raises again the constitutional claims.

The case is properly here for review. The attack on "jurisdiction" is but a flourish, and adds nothing to the constitutional points above mentioned which the defendant's counsel has been pressing with repetitious insistence. We have suffered no change of mind on the constitutional issues since the Whitmarsh decision.

Exceptions overruled.