State v. Barton

Court of Appeals of Oregon

State v. Barton

492 P.2d 828, 8 Or. App. 186, 1972 Ore. App. LEXIS 1056

CourtCourt of Appeals of Oregon

DecidedJanuary 14, 1972

StatusPublished

Cited by3 cases

This text of 492 P.2d 828 (State v. Barton) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Barton, 492 P.2d 828, 8 Or. App. 186, 1972 Ore. App. LEXIS 1056 (Or. Ct. App. 1972).

Pincite

Opinion

LANGTRY, J.

Defendant appeals from a conviction of first degree murder. ORS 163.010 (1). He was jointly indicted with Tina Lee Tremblay, Robert Antonio Tremblay and Raymond David Pister for killing Gary Eugene DeVillez on July 16, 1969. They were tried separately. Defendant assigns as error (1) the trial court’s instruction on certain presumptions, and (2) instruction on “felony murder” based on burglary. Our resolution of these assignments of error does not require a statement of facts.

Defendant failed to take proper exception to the instruction of which he complains. The exception made was:

“* * * [W]e except to submitting the first degree murder instruction including all of the definitions contained in those instructions * *

The purpose of an exception is to apprise the trial court of any error in the instructions so that it may correct the error. State v. Charles, 3 Or App 172, 469 P2d 792, Sup Ct review denied (1970). Defendant’s exception failed to do this.

The merits of defendant’s assignment do not warrant exception to the general rule that questions not raised in the trial court will not be considered on appeal. State v. Phillips, 5 Or App 60, 481 P2d 381, Sup Ct review denied (1971).

*188 The court instructed the jury that if it found the defendant or his accomplices caused the death of DeVillez while committing or attempting to commit a burglary in a dwelling, it was first degree murder. Defendant argues the instruction was error because the assault which was coupled with the breaking and entering to make up burglary merged with the ultimate killing, and, therefore, the burglary could not be relied on as an ingredient of “felony murder.” We considered precisely the same question in a companion case, State v. Tremblay, 4 Or App 512, 479 P2d 507, Sup Ct review denied (1971), and decided it contrary to the defendant’s position. Defendant cites no authorities we did not consider in Tremblay.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

LANGTRY, J.

Defendant appeals from a conviction of first degree murder. ORS 163.010 (1). He was jointly indicted with Tina Lee Tremblay, Robert Antonio Tremblay and Raymond David Pister for killing Gary Eugene DeVillez on July 16, 1969. They were tried separately. Defendant assigns as error (1) the trial court’s instruction on certain presumptions, and (2) instruction on “felony murder” based on burglary. Our resolution of these assignments of error does not require a statement of facts.

Defendant failed to take proper exception to the instruction of which he complains. The exception made was:

“* * * [W]e except to submitting the first degree murder instruction including all of the definitions contained in those instructions * *

The purpose of an exception is to apprise the trial court of any error in the instructions so that it may correct the error. State v. Charles, 3 Or App 172, 469 P2d 792, Sup Ct review denied (1970). Defendant’s exception failed to do this.

The merits of defendant’s assignment do not warrant exception to the general rule that questions not raised in the trial court will not be considered on appeal. State v. Phillips, 5 Or App 60, 481 P2d 381, Sup Ct review denied (1971).

*188 The court instructed the jury that if it found the defendant or his accomplices caused the death of DeVillez while committing or attempting to commit a burglary in a dwelling, it was first degree murder. Defendant argues the instruction was error because the assault which was coupled with the breaking and entering to make up burglary merged with the ultimate killing, and, therefore, the burglary could not be relied on as an ingredient of “felony murder.” We considered precisely the same question in a companion case, State v. Tremblay, 4 Or App 512, 479 P2d 507, Sup Ct review denied (1971), and decided it contrary to the defendant’s position. Defendant cites no authorities we did not consider in Tremblay.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

492 P.2d 828, 8 Or. App. 186, 1972 Ore. App. LEXIS 1056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barton-orctapp-1972.

Opinion

Related

Cite This Page — Counsel Stack