362 Mass. 857 | Mass. | 1972
The petitioner on May 22, 1969, was convicted on indictments charging an assault with intent to commit rape and rape. The case is before the full court upon the petitioner’s exception to the sustaining of the Commonwealth’s demurrer to his petition for a writ of error brought in the county court. The petition sets forth the skeletal history of prior proceedings: Before sentencing, the trial judge allowed the petitioner’s court appointed counsel to be discharged from further representation of the petitioner in other pending indictments. The petitioner’s counsel on appeal was appointed on September 8, 1969, and his motion for a new trial was denied on January 14, 1971. The petition concludes with the following prayer: “[Y]our Petitioner prays that . . . [the] Court issue a Writ of Error . . . directing that the sentence^] . . . under . . . [the two indictments] be set aside because the conviction[s] and sentenced] were rendered in contravention and violation of the Petitioner’s constitutional rights and, further, the Defendant was denied the effective assistance of counsel during the pendency of the appeal period and, further, the Petitioner prays that . . . [the] Court make an order that the sentence[s] . . . be vacated, that the verdicts be set aside and that ... a new trial ... [be granted and that] the Commonwealth be ordered to dismiss . . . [the first] indictment [charging assault with intent to commit rape] on the basis that Count I of . . . [the first indictment] is a lesser included offense of the crime [of rape] alleged in Count I of . . . [the second indictment], all indictments having arisen out of the same factual situation.” Review under a writ of error “ ‘is of matters of law apparent on the record of the court in which the judgment was entered as disclosed by the return.’ . . . [The writ of error] is a restricted remedy.” Guerin v. Commonwealth, 337 Mass. 264, 268. The petition here involved makes only “vague and sweeping suggestion of violation of rights under the [Federal] Constitution ... or under our . . . [State] Constitution.” Id. at 269. A petition for a writ of error “should . . . [set forth] every fact material to the issues
Exceptions overruled.