Opinion
Argued July 23, 1970
Affirmed July 30, 1970 Petition for rehearing denied September 8, 1970 Petition for review denied October 6, 1970
Appeal from Circuit Court, Lane County.
EDWARD LEAVY, Judge.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Jacob B. Tanzer, Solicitor General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.
Before SCHWAB, Chief Judge, and FOLEY and BRANCHFIELD, Judges.
AFFIRMED.
Defendant was tried by jury and convicted of burglary pursuant to an indictment which charged him, in concert with three other men, with breaking and entering into a retail establishment and carrying away a safe which weighed 400 pounds. He appeals on the ground that there was insufficient evidence to establish his connection with the crime. As disclosed by the statement of facts offered by each party, defendant and three others were together in a tavern and elsewhere for three hours preceding the burglary. They were caught together shortly thereafter in one car, together with the safe and other stolen property. During the interim defendant and one of his codefendants attempted to borrow a cutting torch. The evidence was sufficient to create a jury question as to defendant's participation in the crime.
The jury verdict of guilt was by a vote of 10-2. Defendant argues that an unanimous verdict is required. This issue has been decided contrary to defendant's position. State v. Gann, 254 Or. 549, 463 P.2d 570 (1969).
Affirmed.