Opinion
Argued July 12, 1965
Affirmed September 29, 1965
Appeal from Circuit Court, Multnomah County.
HERBERT M. SCHWAB, Judge.
George P. Haley, Portland, argued the cause and filed briefs for appellant.
George M. Joseph, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief were George Van Hoomissen, District Attorney, Portland and Garr M. King, Deputy District Attorney, Portland.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, HOLMAN and LUSK, Justices.
AFFIRMED.
Defendant was convicted of stealing bedspreads from a warehouse in Portland and appeals. Only one of the nine assignments of error need be mentioned. The other assignments are either without merit or are not directed to any ruling of the trial court to which exception or objection was made.
The facts are identical to those recited in the companion case of State v. Meidel, 1965, 241 Or. 367, 405 P.2d 844, and need not be repeated.
During defense counsel's argument to the jury, in referring to the evidence of defendant's previous record of crime, counsel stated that defendant had "been out with no trouble" since 1960. The state objected to the statement as not conforming to the evidence. In ruling on the objection the court stated: "Now do you wish to reopen the case and put on evidence that he has been without charge since 1960 or do you wish to withdraw that statement and say without convictions?" Counsel then stated that "* * * this is the evidence. He has been convicted of nothing since 1960."
Although the court's comment did tell the jury, in effect, that the man had been arrested, the comment was one required where counsel incorrectly stated the evidence. Unlike State v. Townsend, 1964, 237 Or. 527, 392 P.2d 459, where the improper reference to arrests was provoked by the state's cross-examination of defendant, the mention of the arrests here was called for by defendant himself. Accordingly, we think the comment was not an error.
Judgment affirmed.