Opinion
May 31, 1978.
The case was submitted on briefs.
Willie J. Davis for the defendant.
Thomas J. Carey, Jr., Assistant District Attorney, for the Commonwealth.
The defendant was convicted of assault with intent to rape, breaking and entering a 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. 369, 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.