
    David N. Libby vs. Commonwealth (and a companion case).
    June 4, 1970.
    
      Mark A. Michelson for the petitioners.
    
      David G. Nagle, Assistant Attorney General, for the Commonwealth.
    
      
       Paul E. Fleming vs. Commonwealth.
    
   The petitioners were convicted in a joint trial in the Superior Court of kidnapping and rape of the same complainant. They filed two similar petitions for writs of error in the county court. The Attorney General filed a motion to dismiss in each case on the ground that the proper remedy should be a motion for a new trial “as the factual matters alleged by the petitioner are more familiar to the trial judge,” citing Earl v. Commonwealth, 356 Mass. 181. The single justice ordered that no further proceedings be had until the petitioners should have moved in the Superior Court for a new trial on the basis of the assignments of error and the court should have acted thereon. The petitioners excepted. We were informed by counsel during the arguments that the petitioners have filed such motions which have been heard, but have not been decided. In the circumstances, it is in the interest of orderly procedure to await a decision on those motions.

Exceptions overruled.  