Opinion
Motion to clarify mandate May 3, 1966 Allowed May 13, 1966
Appeal from Circuit Court, Multnomah County.
RICHARD J. BURKE, Judge.
MOTION ALLOWED.
Former opinion filed March 9, 1966, 243 Or. 105, 412 P.2d 17.
George Van Hoomissen, District Attorney and George M. Joseph, Deputy District Attorney, Portland, for the motion.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK, Justices.
IN BANC
The state has filed a motion for clarification of the mandate.
Our purpose in remanding the case for further proceedings in conformity with the opinion of the court, was to order a new trial. The judgment of conviction was reversed because of the erroneous denial of defendant's motion to suppress as evidence a pistol taken in a search made pursuant to an arrest which, on the record then before us, we found to be illegal. On another trial, if the evidence as to the arrest is no different, the pistol, of course, should be excluded; otherwise the question of its admissibility will be at large.
There is no basis for the suggestion in the motion that if the trial court should find that the arrest was legal, a judgment of conviction should be entered. Partial new trials in criminal cases are not recognized in this state. The exception to that rule allowed in State v. Brewton, 238 Or. 590, 395 P.2d 874, pursuant to the decision of the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S Ct 1774, 12 L Ed 2d 908, 1 ALR3d 1205, is not to be extended to other classes of cases.
The motion is allowed.