Opinion
Argued February 9, Affirmed February 14, 1968
Appeal from Circuit Court, Multnomah County.
CHARLES S. CROOKHAM, Judge.
AFFIRMED.
John Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Lawrence A. Aschenbrenner, Public Defender, Salem. Jacob B. Tanzer, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.
Before GOODWIN, Presiding Justice, and DENECKE and HOLMAN, Justices.
Defendant was convicted of the crime of illegal possession of narcotics and appealed.
The first two assignments of error relate to the instructions of the court. In neither instance was the matter now complained of called to the trial court's attention either by a requested instruction or by an exception to instructions given. Errors not raised or preserved in the trial court will not be reviewed on appeal in the absence of manifest injustice. State v. Avent, 209 Or. 181, 183, 302 P.2d 549 (1956). The matters raised by the defendant's first two assignments of error are not of that consequence.
The third assignment contends that the court erred in failing to conduct a hearing out of the presence of the jury to determine the issue of entrapment as a matter of law. No request was made by defendant for such a hearing. Defendant concedes that the general rule followed in practically every decision is that entrapment is a question of fact for a jury unless the evidence is so clear that it can be passed on as a matter of law by the trial judge. Coronado v. United States, 266 F.2d 719, 721 (5th Cir 1959).
The judgment of the trial court is affirmed.