
    Robert F. Lamoureux vs. Commonwealth.
    November 6, 1972.
    
      Robert A. Bell for the petitioner.
    
      Harvey F. Rowe, Jr., Assistant Attorney General, for the Commonwealth.
   In Commonwealth v. Lamoureux, 348 Mass. 390, we affirmed the convictions of Lamoureux for robbery and kidnapping. Subsequently he sought relief in the Federal Court on various grounds in a number of actions and, there being unsuccessful, has now filed a petition for a writ of error in the county court. He assigns as error alleged violations of his constitutional rights because of unduly suggestive pre-trial identification procedures and excepts to the denial by the single justice of the issuance of the writ. He was tried in May of 1964, prior to the decisions in United States v. Wade, 388 U. S. 218, Gilbert v. California, 388 U. S. 263, and Stovall v. Denno, 388 U. S. 293. Whether or not the victim had identified the proper person was a factual question for the jury, and whether or not the victim made an in-court identification on the basis of a pre-trial identification so unnecessarily suggestive as to cause irreparable damage is also a factual issue. In Earl v. Commonwealth, 366 Mass. 181, we considered the employment of the writ of error as a vehicle for appeal on alleged constitutional errors which have their basis in factual disputes. We concluded in the Earl case that it is preferable that these questions be resolved in the first instance by the trial judge upon a motion for a new trial. P. 183. This case comes clearly within the holding of the Earl case. The order of the single justice denying the issuance of the writ of error was correct.

Exceptions overruled.  