The defendant was convicted on indictments charging him with assault with intent to rob, assault with intent to rape, and breaking and entering in the nighttime with intent to commit a felony. The trial was made subject to the provisions of Gr. L. c. 278, §§ 33A-33GL The cases come to us on the summary of the record, a transcript of the evidence, and assignments of error. The evidence is summarized as follows.
The complainant, a woman of fifty-nine at the time of the alleged offence, lived alone in North Dighton. On August 30,1961, she returned home at 10:30 p.m. from an evening out with friends. She went into her bedroom to disrobe when a man emerged from her closet and placed his *403 hands over her eyes and mouth, threatening her life if she made any outcry. The intruder placed the complainant on a bed and attacked her; he then took her pocketbook and wallet and left. He was of medium build and had a cheesecloth Fuller Brush bag over his face. He was wearing a white shirt open at the neck, a greenish-blue slip-on sweater, and dark summer trousers. Entrance to the house had evidently been gained by forcing the kitchen door. The cheesecloth bag was subsequently found by a State trooper on the same evening about fifty feet from the complainant’s house. The defendant was arrested on September 7, 1961, on a warrant issued from the Taunton District Court. On the following day, on the application of a State trooper, a search warrant issued from the Fall River District Court, as a result of which State troopers went to the defendant’s house during the day and seized a blue cardigan sweater, two pairs of brown pants, a pair of chino pants, and a wool and leather jacket. A motion to suppress the evidence seized was allowed as to the two pairs of brown pants and the wool and leather jacket. A State police chemist, qualified as an expert, testified to certain human blood stains, as well as to certain fibers and human hair, found on the cheesecloth bag, which fibers, he testified, were similar in color to those in the sweater seized by the State police at the defendant’s home. The chemist also testified that the microscopic tests made by him on the pair of tan chino pants which were in evidence indicated the presence of sperm.
The defendant took the stand in his own behalf, denied his participation in the events as charged, and admitted having been “arrested for numerous felonies in Rhode Island,” for at least one of which he was imprisoned. He also admitted being sentenced in Fall River in 1961 to three to five years’ imprisonment for breaking and entering, and to other of-fences committed in Massachusetts.
We consider only those assignments of error which the defendant has argued to us.
Commonwealth
v.
Gliniecki,
1. The defendant’s first assignment of error alleges that the court below erred “ [b]y denying the defendant’s Mo-
*404
tian for a Continuance on the grounds that he was ill and under the influence of narcotics.” The defendant raised the issue for the first time on the day his trial began. He submitted no proof to substantiate the claim that he was either ill or under the influence of narcotics. The allowance of a motion for a continuance was within the discretion of the trial judge.
Commonwealth
v.
Soaris,
2. As his fourth assignment of error, the defendant contends that the court below erred by the admission in “evidence of certain items of the defendant’s clothing which were obtained on the basis of only a search warrant and not a search and seizure warrant.” The search of the defendant’s house and the seizure of several items of his clothing resulted from the issuance of a warrant by the Fall River District Court. See G. L. c. 276, § 1. There is no merit in the defendant’s argument that this section did not authorize the seizure of the articles which the warrant described. General Laws c. 276, § 3, as amended, provides in part that “ [i]f an officer in the execution of a search warrant finds property or articles therein described, he shall seize and safely keep them ... so long as necessary to permit them to be produced or used as evidence on any trial.”
On a motion to suppress, the burden of establishing that evidence has been illegally obtained is on the moving party.
Commonwealth
v.
Fancy,
The defendant raises in his brief, and has argued to us, questions on the validity of the warrant.
1
The arguments lodged with us now are made for the first time and greatly expand what the record discloses the defendant argued relative to the warrant in the court below. There counsel urged upon the court only that contention which is quoted above. “Having stated specifically the basis of . . . [his] objections, . . . [he] cannot urge other grounds in this court.”
Commonwealth
v.
Geagan,
It is true that this court has said that in appropriate instances it has and will exercise the power to set aside a verdict or finding in order to prevent a miscarriage of justice when a decisive matter has not been raised at trial.
Commonwealth
v.
Conroy,
3. The defendant also complains that he was prejudiced by a line of questioning on cross-examination relating to an alleged prior felony conviction in Rhode Island. No objection was made at the time, nor was an exception saved or an assignment of error filed under G-. L. c. 278, § 33D. The failure to save an exception forecloses any consideration of the issue in this court.
2
Commonwealth
v.
Gray,
Judgments affirmed.