Home COMMONWEALTH vs. WARREN COPELAND.

6 Mass. App. Ct. 885

May 31, 1978

The evidence at the close of the Commonwealth's case (see Commonwealth v. Kelley, 370 Mass. 147 , 149-150 [1976]) was sufficient to warrant a finding that the defendant was guilty of the particular violation of G. L. c. 266, Section 49, which was alleged in the complaint. See Commonwealth v. Tivnon, 8 Gray 375 , 379-380 (1857); Commonwealth v. Conlin, 188 Mass. 282 , 284 (1905); Commonwealth v. Anderson, 245 Mass. 177 , 184-185 (1923); Commonwealth v. Tilley, 306 Mass. 412 , 415-417 (1940); Commonwealth v. Eppich, 342 Mass. 487 , 492, 493 (1961); Commonwealth v. Montecalvo, 367 Mass. 46 , 52 (1975). There is nothing to the contrary in Commonwealth v. Armenia, 4 Mass. App. Ct. 33 , 38-39 (1976). 2. As there was no deterioration in the Commonwealth's case by the close of all the evidence (see Commonwealth v. Kelley, 370 Mass. at 150 n.1), no new question was presented by the renewal of the motion for a directed verdict at that time. 3. Nor was any new question raised by the further motion which was filed under G. L. c. 278, Section 11, after the return of the verdict.

Judgment affirmed.

Home COMMONWEALTH vs. WALTER WHITE.

6 Mass. App. Ct. 885

May 31, 1978

The defendant was convicted of assault with intent to rape, breaking and entering a

Page 886

dwelling house in the nighttime with intent to commit a felony, and assault and battery. 1. The indictment charging assault and battery (no. 08688) was placed on file with the consent of the defendant, and the appeal from the conviction thereon is thus not properly before us. See Commonwealth v. Delgado, 367 Mass. 432 , 437, 438 (1975). 2. Although we think it would have been preferable for the judge to allow the defendant's motion for a pretrial lineup, the denial of that motion was not an abuse of discretion. Commonwealth v. Core, 370 Mass. 369 , 372-373 (1976). Commonwealth v. Dickerson, 372 Mass. 783 , 791 (1977). Commonwealth v. Johnson, 2 Mass. App. Ct. 877 (1974). Commonwealth v. Wheeler, 3 Mass. App. Ct. 387 , 390-391 (1975). 3. The assignment of error concerning the denial of the defendant's motion for a directed verdict has not been argued and is therefore waived. Commonwealth v. Baptiste, 372 Mass. 700 , 701 (1977).

Judgments on indictments nos. 08686 and 08687 affirmed.

Appeal from conviction on indictment no. 08688 dismissed.