Cronin v. Judges of the Superior Court

Rugg, C.J.

This is a petition for a writ of prohibition. It is founded upon these facts: Indictments were found against the defendant; a jury was empanelled and the trial of the issues raised on the indictments proceeded for several days when the presiding judge against the protest of the defendant withdrew the cases from the jury because he ruled that a remark, made by counsel for the defendant, was calculated to bring about a mistrial. The defendant again has been called to the bar of the Superior Court for trial upon the same indictments. He brings this petition on the ground that the withdrawal of the cases frdm the jury at the first trial was an acquittal and that therefore he cannot be tried again on the same indictments.

Manifestly the trial of the indictments was within the jurisdiction of the Superior Court. If the withdrawal of *184 the cases from, the jury amounted to an acquittal, the defendant has every opportunity to present that contention to the Superior Court by a proper plea. It appears from the record that he already has filed a plea in bar, a plea to the jurisdiction, and a plea of autrefois acquit. Some one of these pleas, if in proper form, amply protects all rights of the defendant. The Superior Court had jurisdiction to pass upon them. That is a court of general jurisdiction as to the trial of all indictments. If that court made an erroneous decision, the regular forms of criminal practice and procedure afford ample remedy for the correction of such error. The principles which govern the issuance of a writ of prohibition are well settled. “It will not be granted if the court or tribunal against which it is sought has jurisdiction of the cause or matter which it proposes to adjudicate. Prohibition lies only to restrain a clear excess of jurisdiction about to be committed against one who has not submitted thereto where there is no other adequate remedy. It does not issue to correct or restrict errors or irregularities of a tribunal which is acting within its jurisdiction, although proceeding improperly in the exercise of that jurisdiction. It can be invoked to prevent a court from exercising a jurisdiction which it does not possess. It will not be granted to remedy the errors of a judicial tribunal acting within its jurisdiction, but lies only to restrain such tribunal from acting outside its jurisdiction.” Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 82 , and cases there collected. Goulis v. Judge of Third District Court of Eastern Middlesex, 246 Mass. 1, 8 , and cases cited.

Exceptions overruled.