# Petition — Ludwig v. Massachusetts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1012%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 427 U.S. 618 ## Text Supreme Court, U. S. wa £2 2 | SEP 17 1975 = MICHAEL RODAK, JR., CLERK me oe ee IN THE SUPREME COURT OF THE UNITED STATES i October Term, 1975 25-37% No. RICHARD I. LUDWIG, Appellant VS. MASSACHUSETTS, Appellee ON APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS JURISDICTIONAL STATEMENT Robert W. Hagopian, Esq. Wrentham, Massachusetts 02093 Counsel for Appellant Tel. (617) 384-3333 Opinion Below... Jurisdiction. .. Questions Presented... Statutes Involved , Statement of the Case The Questions are Substantial . INDEX : 2. eo 6) +e + & & 2 : + * ee & oe 5 7 . . . . . . 5 eee ee ee ee ae eee ee ee ee ee ee Appendix A. Opinion and judgment of the Supreme Judicial Court. la B. Statutes Involved ..... 4a C. Appellant's motion for a jury trial in the District Court of Northern Norfolk ., l3a D. Appellant's motion to dismiss in the Six-Man Jury Division of the District Court of North- ene MANGERE -«.(« «16 5s t « 4 E. Appellant's Notice of OS ee a a TABLE OF CASES Baldwin v. New York, 399 U.S. 66 (1970) Barker v. Wingo, 407 U.S. 514 (1972) Callan v. Wilson, 127 U.S. 540 (1888) Colten v. Kentucky, 407 U.S. 104 (1972) Commonwealth v. Crapo, 212 Mass. 209 (1912) Costarelli v. Massachusetts, US. , 95 &.Ct. 1534, Z4L.Ed. 2a 76 (1975) Duncan v. Louisiana, 391 U.S, 145 (1968) Holliday v. State, 109 R.I. 93 (1971) Jones v. Robbins, & Gray 329 (1857) Lemieux v. Robbins, 414 F2d 353 (lst cir.1969) cert. denied, 397 U.S. 1017 (1970) Manns v. Commonwealth, 213 VA 233 (1972) Manns v. Koontz, 451 F.2d 1345 (4th cir. 1971) li Page 1l ll TABLE OF CASES (cont'd.) Railway Express Agency v. Virginia, 282 U.S. 440 United States v. Green, 355 U.S. 184 (1957) United States v. Jorn, 400 U.S. 470 (1971) United States v. Marion, 404 U.S. 307 (1970) Walker v. Dillard, 363 F. Supp. 921 (W.D.V. 1973) Ward v. Village of Monroeville, 490 U.S. 57 (1972) Whitmarsh v. Commonwealtn, Mass. , 316 N.E.2d 610 (1974) 6, Williams v. Florida, 399 U.S. 78 (1970) iii Page IN THE SUPREME COURT OF THE UNITED STATES October Term, 1975 \T NO . RICHARD I. LUDWIG, Appellant vs. MASSACHUSETTS, Appellee ON APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS JURISDICTIONAL STATEMENT Appellant appeals from the decision of the Supreme Judicial Court of Massa- chusetts, entered on June 12, 1975, and submits this statement to show that the Supreme Court of the United States has jurisdiction of the appeal and that a substantial question is presented. OPINION BELOW The opinion of the Supreme Judicial Court of Massachusetts is reported in the Massachusetts Advance Sheets p.1194 (1975) and at 330 N.E. 2d 467. A copy of the opinion is set out in the ap- pendix to this jurisdictional statement at p.la. JURISDICTION The judgment upon which this appeal is taken was rendered on June 12, 1975, by the Supreme Judicial Court and notice of appeal was filed in the Supreme Judicial Court on September 3, 1975. The jurisdiction of the Supreme Court to review the decision of the Supreme Judicial Court on direct appeal is con- ferred by 28 U.S.C. Sec. 1257(2). Section 1257(2) is specifically in- voked by appellant as the constitution- ality of Massachusetts' statutory two- tier trial de novo criminal procedure was held not to be repugisant to the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. The statutory procedure is comprised of Article XII of the Massachusetts' Declaration of Rights 1 which provides 1 -_ For purroses of Sec.1257(2) a provision of a state constitution is equivalent to a state "statute", Railway Express Agency v. Virginia, 282 U.S. 440, 2 that no person “shall be... deprived of his ... liberty ... put by the judgment of his peers"; G.L. Ch. 218 Sec. 26 con- ferring jurisdiction on the courts in the first tier of the system; G.L. Ch. 278 Secs. 18, 18A, providing a right of appeal to the various courts in tie second tier, and a right to trial by a jury of six or twelve.2 This procedure has been construed by the Supreme Judi- cial Court to mean that an accused is to be tried initially in a district court which comprises a judge and that he shall have a right to a trial by jury by claiming an "appeal" to the errom a conviction in certain district courts in the first tier, a defendant may “appeal” pursuant to G.L.Ch. 278 Sec. 18, Ch. 218 Sec. 27A, to the six- man jury division of the district courts or to the superior court where he may obtain a trial by jury of twelve pursu- ant to G.L.Ch. 278 Sec. 2. From a con- viction of the Municipal Court of Boston or of a district court of Boston, an accused may “appeal" pursuant to G.L.Ch.278 Sec.18A to the twelve-man jury division of the Municipal Court of Boston, or to the superior court where he is also guaranteed a twelve-man jury pursuant to G.L.Ch.278 Sec.2. second tier of the Massachusetts system, See Jones v. Robbins, 8 Gray 329, 341-342 (1858) .2 QUESTIONS PRESENTED 1. Is Massachusetts bound by the rule of Callan v. Wilson, 127 U.S. 540 (1888) guaranteeing a defendant a trial by jury in the first instance when charged with an offense carrying a pos~ sible maximum jail sentence in excess of six months? 2. Where a defendant is entitled to a trial by jury, does the interposition of a trial by magistrate impose an un- constitutional burden on the Sixth Amendment right to a speedy trial? 33 particular, G.L. Ch. 218 Sec. 26 con- fers “original jurisdiction" to the district courts over certain crimes. The term "district court" means a court in which enly a judge presides. Compare this statute with its partial ancestor St. 1858 Ch. 448 Sec. 1 which conferred jurisdiction to “police courts" over larceny not exceeding $50. "Police court", as was noted by Chief Justice Shaw in Jones v. Robbins, supra, at p.336, simply meant a “court [that] sits without a jury". (St. 1858 Ch. 448 Sec. 1 is set in full in Jones at pp. 336, 354.) 3. Where the Sixth Amendment guaran- tees a trial by jury, do state two-tier cde novo procedures which deny this right in the first instance violate the double jeopardy provisions of the Fifth Amend- ment? STATUTES INVOLVED Article XII of the Declaration of Rights of the Massachusetts Constitution; Massachusetts General Laws Ch. 218 Secs. 26, 27A, Ch. 278 Secs. 2, 18, 18A, and 24, comprise the framework of Massa- chusetts' two-tier trial de novo criminal procedure and are set forth in the appendix at pda. STATEMENT OF THE CASE Richard I Ludwig was charged in the District Court of Northern Norfolk with driving an automobile negligently so that the lives and safety of the public were endangered, a criminal offense set out in G.L.Ch. 90 Sec. 24(2Xa) carrying a possi- ble maximum two-year jail sentence. At the commencement of his trial, Richard I. Ludwig duly moved the district court judge for a speedy jury trial, specifically asserting his rights under the Fifth and Sixth Amendments. ‘he judge denied this motion, and after a trial, found Richard I, Ludwig guilty of the offense charged. Thereupon, Richard I. Ludwig claimed an "appeal" for a trial de novo in District Court of Northern Norfolk Six-Man Jury pursuant to G.L. Ch. 278 Sec. 18 and Ch. 218 Sec, 27A. In the de novo proceedings, appellant duly filed a “motion to dismiss" on the grounds that he was denied a jury trial in the first instance. This motion was denied and appellant took an exception pursuant to G.L. Ch. 278 Sec. 30. After being found guilty and sentenced to pay a $20 fine, payment of which was stayed, appellant filed a bill of exceptions to the Supreme Judicial Court pursuant to G.u. Ch. 278 Sec. 30 alleging that the denial of his "motion to dismiss" was error, The Supreme Judicial Court over- ruled appellant's exception. The federal questions underlying this appeal were raised in the first instance by appellant at his trial in the District Court of Northern Norfolk by his motion for a speedy jury trial, and in the District Court of Northern Norfolk Six- Man Jury by his “motion to dismiss" as defined in Whitmarsh v. Commonwealth, | Mass. Adv. Sh. (1974), 1403, 316 N.E. 2d, 610, 613 (1974). See also Costarelli v. Massachusetts, U.S. , 95S. Ct. 1534. Copies of both motions are set out in the appendix at pp. 13a l4a. The federal issues were raised in the Supreme Judicial Court upon appellant's bill of exceptions. In its decision the Supreme Judicial Court held that "the 6 claimed infractions of constitutional rights — the right to a speedy trial under the Sixth Amendment, the right to a jury trial under the Sixth Amendment and Article 12 of the Massachusetts Declara- tion of Rights, and the guaranty against double jeopardy under the Fifth Amendment" were properly before the court. The court then passed on the claims and held them “untenable", — “We have suffered no change of mind on the constitutional is- sues since the Whitmarsh decision."4 THE QUESTIONS ARE SUBSTANTIAL 1. The first tier of the Massachu- setts' two-tier de novo criminal procedure is comprised of the district courts and the Municipal Court of Boston. These courts have jurisdiction over all crimes carrying a possible prison sentence of five years or less, and certain enumerated felonies having possible maximum prison sentences in excess of five years.> Criminal proceedings in these courts are commenced by the issuance of a complaint. If the defendant pleads guilty at arraign- ment, he is sentenced by the presiding judge. If he is dissatisfied by the sentence, he may “appeal"6 the issue of The decision of the Supreme Judicial Court in effect incorporated the decision in Whitmarsh, 5 G. L. Ch. 218 Sec. 26. © 6.1. Ch. 278 Secs. 18 and 18A, 5 his sentence to a court in the second tier in the de novo procedure, but he is not entitled to a de novo trial in the second tier on the issue of his inno- cence Or guilt, Commonwealth v. Crapo, 212 Mass. 209, 210 (1912). If the defendant pleas not guilty in the district court or Municipal Court of Boston, he must stand trial before a judge. He cannot obtain a trial by jury as the lower court “sit without jury". If he is convicted in certain district courts, he has a right of "appeal" to the Superior court where he may obtain a de novo trial by jury’ or to the Six-Man Jury division of the district court.8 If he is convicted in a district court of Boston or the Municipal Court of Boston, he may “appeal"9 to the superior court for a de novo trial by a jury of twelve, or al- ternatively to the twelve-man jury divi- sion of the Municipal Court of Boston, 10 ’G.L. Ch. 278 Secs. 2, 18. Bok. Ch. 278 Sec. 18 and Ch. 218 Sec.27A, 7 a.b. Ch. 278 Secs. 2, 18A. 10 ence, the second tier of the Massachu- setts system is comprised of the super- ior court, the six-man jury division of the district courts, and the twelve-man jury division of the Municipal Court of Boston. If a defendant fails to “prosecute his appeal [in the second tier], he shall be defaulted on his recognizance and the superior court may impose sentence upon him for the crime of which he was con- victed, as if he had been convicted in said court," G.L. Ch. 278 Sec. 24. (emphasis added) In reviewing this two-tier de novo procedure in Jones v., Robbins, 8 Gray 329, 341 (1858), the Supreme Judicial Court held that it did not violate Article XII of the Declaration of Rights of the Massachusetts Constitution guaran- teeing that no law "shall subject any person to ... infamous punishment ... without trial by jury", which words Chief Justice Shaw stated were "equivalent" to the clause -- "in all criminal prosecu- tions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury" -- in the Sixth Amend- ment. However, thirty years later in Callan v. Wilson, supra, at 553-4, Justice Harlan took note of Jones v. Robbins and rejected its reasoning at page 556-7 by holding that the Sixth Amendment guarantee to a trial by jury meant trial by jury in the first in- stance: "Except in that class or grade: of offenses called petty offenses, ... the guarantee of an impartial jury to the accused in a criminal prosecution, conducted either in the name, or by or under the authority of, the United States, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court he is put on trial 9 for the offense charged." This decision, of course, only affected the two-tier de novo procedure in the District of Columbia and was not binding on Massachu- setts prior to the decision by this Court in Duncan v. Louisiana, 391 U.S. 145 (1968). In Duncan at p. 149, this Court held "that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which — were they to be tried in a federal court — would come within the Sixth Amendment's guarantee", and hence inferentially bound the states to the rule of Callan v. Wilson, supra. In particular see Duncan at p. 148 ftn. 30, 181, 182, ftn. 21, 213. Following Duncan, this Court held in Baldwin v. New York, 399 U.S. 66 (1970), that the states were bound to afford an accused a trial by jury with respect to all crimes carrying a maximum prison sentence in excess of six months. Subsequent to Duncan and Baldwin, state and lower federal courts have rendered conflicting opinions as to whether the conjunctive effect of Duncan and Baldwin bound the states to the rule of Callan v. Wilson. A unanimous Supreme Court of Rhode Island answered the ques- tion in the affirmative in Hollida v. State, 109 R.I. 93, 103 (I97I) — "We hold, then that those charged with misde- meanors that could result, upon conviction, in the imposition of a sentence of more than six months are entitled to a speedy 10 and prompt trial by an impartial jury in the first instance." The Supreme Court of Virginia reached the opposite con- clusion in Manns v. Commonwealth, 213 VA, 2nd 233 (1972) holding that Mr. Justice White's footnote 30 in Duncan "makes it clear" that the question_of “incorpora- tion" was an "open" one.t1 To the same effect, see Walker v. Dillard, 363 F. Supp. 921 (W.D.V. 1973). In Whitmarsh v. Commonwealth, Mass. __, 316 N.E. 2d 610, 618-619, the Supreme Judicial Court held that the "state of the law on the subject is high- ly uncertain" and therefore it was not "required to conclude either (a) that the Sixth Amendment would be interpreted at the present time by the Supreme Court to require a trial by jury in the first instance ..., or (b) that even if that court did reaffirm this rule ... with respect to the Federal Courts, it would apply such a requirement in equal rashion to the states." In other state juris- dictions, the issue is undecided. See ftn. 9 and 10 in Colten v. Kentucky, 407 U.S. 514 (1972) citing Massachusetts, North Carolina, Pennsylvania. Cf. Lemieux v. Robbins, 414 F2d 353, 355 ftn. 3 (1969), cert. denied, 397 U.S. 1017 (1970), not- ing the two-tier procedure in Maine. See also D. WNon-Jury Trial for Misdemeanors Subject to De Novo Review, Appendix to Opinion of Justice Harlan, Williams v. Florida, 399 U.S. 78, 141 (1970). —_—---- - t1e¢. Manns v. Koontz, 451 F.2d 1345 (4th cir. 1971). ll 2. A second issue presented by this appeal is whether the imposition of a trial without jury is an unconstitutional burden on the defendant's right to a speedy trial and violates the double jeopardy provisions of the Fifth Amend- ment. The two-tier trial de novo proce- dure is totally counter-productive to minimizing the “anxiety and concern of the accused", Barker v. Wingo, 407 U.S. 514, 532 (1972), one of the main purposes of a speedy trial guarantee. For the defendant who chooses not to disclose his defense, a trial in the district court is a meaningless proceeding. A conviction and “appeal" from a district court trial generates a "cloud of anxiety, suspicion and often hostility", Barker v. Wingo, supra, and United States v. Marion, 404 0.8. 307, 328 USPS o and shifts the burden, in violation of the Fifth Amendment, to the defendant to prosecute his “appeal" to prove his innocence, G.L. Ch. 278 Sec. 24. See Holiday v. State, supra, at page 103, alternatively holding that two- tier trial de novo procedures violate the speedy trial provisions of the Sixtna Amendment. Similarly, the two-tier trial de novo system inherently violates the under- pinnings of the double jeopardy provisions of the Fifth Amendment — "“[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embar- - rassment, expense, and ordeal and con- , ic pelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty", United States v. Green, 355 U.S. 184, 187-188 (1957) Implicit in limiting "the Government to a single criminal proceeding to vindi- cate its very vital interest in enforce- ment of criminal laws", United States v. Jorn, 400 U.S. 470 (1971), is limiting 1t to a single proceeding which comports with constitutional standards, and it is no answer on the part of States to eventually offer the defendant a constitu- tional de novo adjudication, Ward v. Vil- lage of Monroeville, 490 U.S. 57, 61-62 (15972). Since the above issues effect the administration of criminal justice in at least ten states, and since there is a conflict between at least two of these, it is submitted that the questions pre- sented by this appeal are substantial and of pubiic importance. CONCLUSION Appellant maintains that the decision of the Supreme Judicial Court was error in that it denied him his fundamental right to a speedy jury trial under the Sixth Amendment to the United States Constitution. Accordingly, he submits that the questions presented by this 13 appeal are so substantial to require plenary consideration for their resolu- tion. Respectfully submitted, ine -p Jj he ani / esate Robert W. Hagopian, Esq. Counsel for Appellant 14 COMMONWEALTH VS. RICHARD I. LUDWIG Supreme Judicial Court of Massachusetts, Norfolk. Argued April 9, 1975 Decided June 12, 1975 Robert W,. Hagopian, Wrentham, for de- fendant. Paul S. Zonderman, Sp. Asst. Dist. Atty., for the Commonwealth. Before TAURO, C.J., and BRAUCHER, HENNES- SEY, KAPLAN and WILKINS, JJ. KAPLAN, Justice. This is one of a series of cases in which the defendant's counsel, represent- ing a number of clients, has sought to test the constitutionality of the Common- wealth's “two-tier” or "trial de novo" system,1 a procedure by which those ac- 1. see the listing of such cases in Whit- marsh v. Commonwealth, Mass. , 316 N.B.2da 610, f£n.4 (1974) (Mass.Adyv.Sh. [1974] 1403, 1408-1409, fn.4). Costarel- li v. Municipal Court of the City of Boston, Mass. , 325 N.E.2a o55, fn.3 (1975) (Mass.Adv.Sh.[1975] 481, 487-488, fn.3). See also a connected case, Costarelli v. Massachusetts, U.S. , 95 S.Ct. 1534, 44 L.Ed.2d 76 (1575). la cused of certain offenses may be 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.278,818.> We need to refer here to one of the prior proceedings. In Whitmarsh v. Com- monwealth, Mass. ,2 316 N.E.2d 610 (1974), Whitmarsh was tried in a District Court on a charge of operating a motor vehicle while under the influence of in- toxicating liquor; he moved at the out- set 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 witn 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 declar- ation that the two-tier system was un- constitutional, 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 main- tained, and we declined exercise of extra- ordinary power under our superintendency statute, G.L. c.211, 83. 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__ @-mass.Adv.Sh. (1974) 1403. la (cont‘d.) _ __, 316 N.E.2a at 614, we undertook to state our opinion on the claimed in- fractions 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 __ _ —__s,& 316 N.E.2d 610. In holding that the "interlocutory appeal" was not available, we indicated how a final decision might be obtained that would be subject to regular appel- late review. We said, "If his motion were denied [i.e., Whitmarsh's motion in the Superior Court to dismiss], and if he were thereafter tried in the Superior Court and found guilty .. . [Whitmarsh] would have available to him an opportu- nity for appellate review of the ruling on his motion as matter of right by sav- ing and perfecting exceptions thereto." (Id. at ,2 316 N.E.2d at 613). 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.90 824[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 pur- D-Mass.Adv.Sh. (1974) at 1408-1409. ©*mMass.Adv.Sh. (1974) at 1408-1418. 2a poses to a de novo proceeding in the Su- perior Court, see G.L. c.278, 818), 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 add nothing to the constitu- tional points above mentioned which the defendant's counsel has been pressing with repetitious insistence. We have suffered no change of mind on the constitutional issued since the Whitmarsh decision. Lxceptions overruled, 2a (cont'd,.) COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR THE COMMONWEALTH, AT BOSTON IN THE CASE OF June 12, 1975. COMMONWEALTH vs. RICHARD I. LUDWIG pending in the District Court of Northern Norfolk for the County of Norfolk, Nos. 4157, 4158 and 4159 ORDERED, that the following entry be made in the docket; viz. ,— Exceptions overruled. By the Court, William M. Cloran, Asst. Clerk. June 12, 1975 Brief statement of the grounds and reasons of the decision; See opinion on file, 3a APPENDIX Article XII of the Massachusetts Declaration of Rights: No subject shall be held to answer for any crimes or offense, until the same is fully and plainly, substantially and formally, described to hin: or be compelled to accuse, or” furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defense by himself, or his counsel, at his election. And no. subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment excepting for the government of the army and navy, without trial by jury. G.L. CH. 218 Sec. 26 District courts shall have original jurisdiction, concurrent with the superior court, of the following offenses committed within their respec- tive district or otherwise made punishable therein: all violations of by-laws, orders, ordinances, rules and regulations, made by cities, towns and public officers, all misdemeanors, except libels, all felonies punishable by imprisonment in the state prison for not more than five years, the crimes mentioned in sections sixteen, seventeen, eighteen, nineteen, twenty-cight and forty-nine of chapter two hundred and. sixty-six, and the crimes of forgery of a promissory note, or of an order for 4a >» money or other property, and of uttering as true such a forged note or order, knowing the same to be forged. They shall have jurisdiction of proceed- ings referred to them under the provisions of section four A of chapter two hundred and eleven. Amended by St.1958, c. 138; St.1962, c. 722, §8; St.1964, c. 140; St.1969, c. 496; St.1973, c. 585. G.L. CH. 278 Sec. 18 Whoever is convicted of a crime before a district court may appeal the finding of guilty or the sentence imposed thereon to the superior court or may appeal to and claim a jury of six in a district court in accordance with section twenty-seven A of chapter two hundred and eighteen and at the time of conviction shall be notified of his right to take such appeal. The case shall be entered into the superior court on the return day next after the appeal is taken, and the appellant shall be released On personal recognizance or committed, in accord- ance with the procedures set forth in section fifty-eight of chapter two hundred seventy-six, until he recognizes to the commonwealth, in such sum and with such surety or sureties as the court requires, with condition to appear at the superior court on said return day and at any subsequent time to which the case may be continued, if not previously surrendered and discharged, and so from time to time until the final sentence, order or decree, and not depart without leave, and in the meantime to keep the peace and be of good behavior. If the appellant is not released on personal recognizance and is committed for failure to recognize, the superior court shall thereupon have jurisdiction of the case for the purpose of revising the amount of bail required as aforesaid. 5a The appellant shall not be required to advance any fees upon claiming his appeal or in prosecuting the same. Notwithstanding any other provision of law, a defendant, after a finding of guilty in a district court, may appeal therefrom and shall thereafter be entitied to a trial de novo in the superior court or may app. il to and claim a jury of six in a district court in accordance with said section twenty-seven A. Amended by St.1973, c. 657. Massachusetts General Laws, Chapter 278. Section ISA: | Trial of misdemeanors in Suttolk county or in municipal court of Boston | Any defendant, in any distriet court of Suffolk county or in the municipal court of the city of Boston, found guilty of a violation of a by-law, order, ordinance, rule or regu- lation made by a eity or town or publie officer or of any other misdemeanor, exeept libel, may appeal and claim a jury of twelve in the municipal court of the city of Boston. By claiming sueh appeal, the said claimant shall he deemed to have waived any claim of appeal io a trial by a jury in the superior court or other disposition in said superior court, Any defendant, found guilty in any district court of Suffolk county or in the municipal court of the city of Boston, of a violation of any of the offenses enumerated in the first paragraph of this section who has appealed to the superior court, may, at any time before trial on such appeal, elaim a trial by a jury of twelve in the munici- pal court of the city of Boston and by sO doing shall be deemed to have waived any right to a trial by a jury in the superior court or other disposition in said superior court. When a claim for a trial by a jury of twelve in 6a the municipal court of the city of Boston has been made under the provisions of this paragraph, the clerk of the superior court shall forthwith forward to the clerk of said minnicipal court of the eity of Boston all the papers in the case whieh have been filed in the superior court, The justice presiding at such session over a jury “of twelve in said municipal eourt of the city of Boston 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. No justiee so sitting shall aet in a ease in which he has either sat or held an inquest in the distriet court or other- wise has an interest. Trials by sueh juries of twelve shall proceed in accord. anee with the provisions of law and rules of court apph eable to trials by jury in the superior court. The common- wealth shall be entitled to as many challenges as equal the whole number to which all of the defendants in the ease are entitled. Jurors shall be drawn from the pool of jurors available for the jury sessions in the superior court for Suffolk county. The district attorney for the Suffolk dis- trict shall appear for the commonwealth in all eases. The chief justice of the municipal court of the city of Boston shall arrange for jury sessions in the said municipal court and shall assign justices and special justices thereto, to the end that speedy trials may be provided for such appeals. In the event of a trial by a jury of twelve in the said municipal court, review may be had direetly by the supreme judieial court, by a bill of exceptions, appeal, report or otherwise in the same manner provided for trials by jury In the superior eourt. Any person taking an appeal under this section shall be subject to the municipal court of the city of Boston in aatters of recognizance, In such matters, the said municipal court shall have all of the powers and duties of, and shall proceed in the same manner as the superior court. 7a | BEST COPY AVAILABLE ° Any defendant in the district court of Marlborough, the Massachusetts General Taws Chapter 218, Section 27A: district court of Natick, first distriet court of southern [Trial by jury of six in certain courts] Middlesex, the distriet court of central Middlesex or the . <> ; second district court of eastern Middlesex found guilty of ti 4 en ePisecaisini drial obipeti commy an offense or crime over which the distriet courts have found silty of an oftense ei erie over which the district original jurisdiction under the provisions of section twenty- courts have ortginal jurisdiction under the provisions of six may appeal and claim a jury of six in the first district section twenty-six may appeal and claim a jury of six in court of southern Middlesex. the district court of Central Berkshire. Any defendant in the first district court of eastern Any defendant in a district court of Bristol county found Middlesex, the third distriet court of eastern Middlesex, euilty of an offense or crime over which the Cistrict courts the district court of Somerville, or the district court of have original jurisdiction under the provisions of section Newton, found guilty of an offense or erime over which twenty-six may appeal and claim a jury of six in the second the dtsirtet courts have original jurisdiction under the or third district court of Bristol. ProVvistons of seetion went ~1X rica supepreand wed chlatm oa Any defendant in a district court of Essex county found Jury of six inthe third district court ef eastern Middlesex, guilty of an offense or crime over which the district courts Any defendant tia distriet court of Norfolk county found have original jurisdiction under the provisions of section euilty of an offense or erie over witel the district courts twenty-six may appeal and claim a jury of six in the first ° have original jurisdiction under the provisions of section district court of Essex or the eentral district court of twenty-six may appednband elatm a jury of six in the district northern Essex, , court of northern Norfolk or the district court of East Any defendant in a distriet court of Hampden county Norfolk, fonnd guilty of an offense or crime over which the district Any defendant ina district court of Plymouth county courts have original jurisdiction under the provisions of found guilty ef an offense or erime over witch the district section twenty-six may appeal and elaim a jury of six in courts have ortginal jurisdtetion undor the provistons of the district court of Springfield. section twenty-six may appeal and clatm a jury of six in Any defendant in the first district court of northern the distriet court of Brockton. Middlesex, the fourth district court of eastern Middlesex ANA defendant inoa distriet court of Woreester cOMMTN or the distriet court of Lowell found guilty of an offense fonned guilty of an offense or erin over which the district or crime over which the district courts have original juris- courts have original jurisdiction under the provisions of diction under the provisions of section twenty-six may seetion fwenty-six may appeal and elaine a jury of six im appeal and claim a jury of six in the district court of the contral distriet court of Worcester, Lowell, Sueh claim of appeal shall be oteowritine and shall eon a: sfitmte a waiver of anv claim of appenl te oa trink by jury 1) t}ye SHperior court oor ofttper clispeosttion ny write Superior eourt, 8a Ga BEST COPY AVAILABLE Neevoelefemeloont found endliv rm cn ef said distriet eouirts, of nn atfense or erine ever whieh the distriet ecaurts have a A } Mine ‘ ? } 1) ~tertis cof setetpanm twentv ~ } ’ ’ 1Pee'P lee eourrt ? j 1 tha ‘ ast rie mht auto cane Canes | ¢ vt ry ef