AUGUSTA ENBINDER vs. COMMONWEALTH (and a companion case).

AUGUSTA ENBINDER vs. COMMONWEALTH (and a companion case).

361 Mass. 871

April 3, 1972

A single justice correctly sustained a demurrer to a petition in the county court brought under G. L. c. 211, Section 3, as amended by St. 1956, c. 707, Section 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 Section 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

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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, Section 3 (as amended), is overruled, and that petition is to be dismissed in the county court.

So ordered.