5 Mass. App. Ct. 857

July 18, 1977

Although it is clear to us that the extensive findings made by the Superior Court judge support neither his conclusion that the school committee was prejudiced in violation of art. 29 of the Massachusetts Declaration of Rights nor his judgment ordering that the plaintiff be reinstated with back pay, it is equally clear that no appeal lies from that judgment. MacKenzie v. School Comm. of Ipswich, 342 Mass. 612 , 613-614 (1961), squarely decided the point and has not been overruled. The sentence of G. L. c. 71, Section 43A, upon which the MacKenzie case was based has not been repealed or amended. The point has not been argued by counsel, but we are constrained to notice it because it seems jurisdictional in the fundamental sense. Jones v. Demoulas Super Mkts., Inc. 364 Mass. 726 , 730, fn.6 (1974). Following the MacKenzie case, we hold that the school committee's sole remedy is to commence a civil action in the nature of certiorari (G. L. c. 249, Section 4) in the Supreme Judicial Court, an action which this court, having no original jurisdiction (G. L. c. 211A, Section 10), could not entertain except by way of transfer under G. L. c. 211, Section 4A, or G. L. c. 211A, Section 12, or by way of report under G. L. c. 231, Section 112, and Mass.R.Civ.P. 64, 365 Mass. 831 (1974). Compare Commissioners of Civil Serv. v. Third Dist. Court of E. Middlesex, 2 Mass. App. Ct. 89 (1974).

Appeal dismissed.


5 Mass. App. Ct. 857

July 25, 1977

The defendant was convicted on indictments charging armed robbery while masked, kidnapping, assault with intent to murder, and possession of a firearm with mutilated or removed identification numbers while in the commission of a felony. The trial and appeal were made subject to G. L. c. 278, Sections 33A-33G. 1. There was no error in the denial of the motion for a directed verdict on the kidnapping indictment. The act of holding the victim hostage for a period of time after the arrival of the police had interrupted the robbery was beyond those acts which were merely incidental to the commission of the robbery and warranted the verdict on the kidnapping charge. We thus do not decide whether confinement merely incidental to an act of armed robbery may also be the basis for a conviction on a charge of kidnapping. See Kuklis v. Commonwealth, 361 Mass. 302 , 306-307 (1972). 2. Nor was there error in the denial of the motion for a directed verdict on the charge of armed robbery while masked. The asportation necessary to make out the charge of larceny, an element of the crime of robbery, could be found from the testimony of the victim that the defendant had forced him at gunpoint to hand over a sack containing drugs and an envelope containing

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money. Commonwealth v. Flowers, 1 Mass. App. Ct. 415 , 418-419 (1973). 3. Finally, there was no error in allowing a police officer to testify that he "observed that the serial number on the left hand side of the gun [the one used in the robbery] had been obliterated and removed." We regard the officer's testimony as simply descriptive of the gun and not an opinion on an ultimate issue in the case. See Commonwealth v. MacDonald (No. 2), 368 Mass. 403 , 410 (1975). We have called for and examined the gun, and we observe that the officer's description was accurate. The same conclusion was open to the jury, who also saw the gun.

Judgments affirmed.