Opinion
No. 5151.
Argued September 4, 1963.
Decided September 30, 1963.
1. Certiorari will not ordinarily be granted where an adequate remedy is available on appeal.
2. The statutory procedure under which a respondent in a criminal case aggrieved by a sentence in the municipal court can obtain a new trial in the Superior Court and transfer therefrom to the Supreme Court all questions of law unless the municipal court in its discretion has transferred such a question to the Supreme Court, meets the due process requirements of the Constitution.
3. The transfer and certification of questions of law to the Supreme Court in criminal cases is discretionary with the municipal court.
Petition for a writ of certiorari by the plaintiff, filed in the Supreme Court as an original proceeding. The petition seeks an order directing the municipal court of Rye to transfer to the Supreme Court the issue of the legality of certain rulings made during the trial of a criminal complaint against the plaintiff for driving under the influence of intoxicating liquor (RSA 262:19 (supp)) of which he was found guilty.
The petition alleges that there was a variance between the proof and the allegations of the complaint and also contains the following allegations: "11. That the Petitioner does not have an adequate remedy on appeal to the Superior Court in that such a procedure will be lengthy and costly to the Petitioner and will cause him to receive punishment and sentence prior to the determination of his legal rights, which will in effect result in his receiving cruel and unusual punishment contrary to the Constitution of the United States, and will place undue hardship upon him and will place him in double jeopardy in that a trial de novo in Superior Court will give the State an opportunity to re-try Petitioner and correct the errors and omissions of the State in the first trial.
"12. That the Municipal Court of Rye in refusing to transfer the questions of law involved, has acted arbitrarily and has caused substantial injustice to be done to the Petitioner.
"13. That the Court in denying said motion to transfer has acted unreasonably with obvious prejudice and through error and mistake and has, in effect, placed your Petitioner in double jeopardy."
Griffin, Harrington, Brigham Taylor (Mr. Charles J. Griffin orally), for the plaintiff.
William Maynard, Attorney General and Alexander J. Kalinski, Assistant Attorney General (Mr. Kalinski orally), for the State.
It is familiar law, frequently reiterated, that certiorari will not be granted where an adequate remedy is available on appeal. State v. Knowlton, 102 N.H. 221, 223; Salem Cooperative Bank v. Southwick, 102 N.H. 1, 3; Nashua v. Public Utilities Commission, 101 N.H. 503, 506; Waisman v. Manchester, 96 N.H. 50, 52. It is true that this rule does not operate with monolithic inflexibility and an exception can be made where there are compelling reasons to do so in the interests of justice. An example is Cloutier v. State Milk Control Board, 92 N.H. 199, 203, where certiorari was allowed to review an administrative order during a war-time emergency after the right of appeal had expired through no fault of the petitioner. Nashua v. Public Utilities Commission, supra, 507.
In the present case the plaintiff concedes that RSA 599:1 (supp) grants a right of appeal to the Superior Court with a trial de novo but contends that remedy is inadequate, unsatisfactory and unconstitutional. This contention was expressly considered and specifically rejected in Riendeau v. Milford Municipal Court, 104 N.H. 33. "We are of the opinion that our present system by which a defendant aggrieved by a sentence in a municipal court can obtain a new trial in the Superior Court and transfer therefrom to this court all questions of law (unless the municipal court in its discretion has transferred such a question directly to this court) meets the requirements of our Constitution." Riendeau v. Milford Municipal Court supra, 35.
The plaintiff claims that the refusal of the municipal court to transfer his exceptions to the admission of evidence and his motion to dismiss is both arbitrary and erroneous. In 1957 it was decided that the transfer and certification of questions of law to the Supreme Court in criminal cases was discretionary with the municipal court. State v. Deane, 101 N.H. 127, 130. In 1962 the decision in Deane was reaffirmed in Riendeau v. Milford Municipal Court, 104 N.H. 33, 34. In 1963 these cases were followed in State v. Sukoff, 105 N.H. 70. These decisions are controlling in this proceeding. Upon the record, briefs and argument in this case we can find no occasion for the issuance of a writ of certiorari compelling the Rye municipal court to transfer or certify the plaintiff's exceptions to this court.
Petition dismissed.
All concurred.