Opinion
No. T-7-5794, CA 8859
Submitted on record and appellant's brief October 6, reversed and remanded October 24, 1977
Appeal from District Court, Douglas County.
Carl M. Felker, Judge.
Joan Glawe Seitz, Assistant Public Defender, Roseburg, filed the brief for appellant.
James A. Redden, Attorney General, Al J. Laue, Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, appeared for respondent.
Before Schwab, Chief Judge, and Tanzer and Joseph, Judges.
PER CURIAM.
Reversed and remanded.
Tanzer, J., concurring opinion.
The state confesses error.
Reversed and remanded.
I concur to point out that reversal in a case such as this does not follow automatically from a confession of error. The United States Supreme Court has stated the rule which I trust is implicit in the cryptic majority opinion:
"* * * Confessions of error are, of course, entitled to and given great weight, but they do not 'relieve this Court of the performance of the judicial function.' Young v. United States, 315 U.S. 257, 258, 86 L Ed 832, 834, 62 S Ct 510 (1942). * * *" Sibron v. New York, 392 U.S. 40, 58, 88 S Ct 1889, 20 L Ed 2d 917 (1968).
I concur inasmuch as I agree with appellant's assignment of error and the underlying analysis of the state's confession.