Opinion
Argued January 19, 1970
Affirmed January 29, 1970 Rehearing denied February 24, 1970 Denied by Supreme Court April 7, 1970
Appeal from Circuit Court, Klamath County.
L. ORTH SISEMORE, 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 FORT and BRANCHFIELD, Judges.
AFFIRMED.
Defendant was tried by jury and convicted of the crime of larceny of an automobile valued at more than $75. The trial judge instructed the jury on the crime charged and also on the lesser included offenses of petit larceny of an automobile, and unauthorized use of an automobile. The judge, in keeping with his instructions, provided the jury with four alternative verdict forms; one finding the defendant guilty as charged, one finding the defendant guilty of petit larceny, one finding him guilty of unauthorized use, and one finding him not guilty.
On appeal, defendant contends that a separate not guilty verdict form should have been given the jury as to each lesser included offense.
The state argues that the verdict forms provided the jury correctly reflected the four alternative choices available to the jury, and that in any event, the matter is not properly before us, because the issue was not raised in the trial court. We agree with the state on both grounds.
Defendant also argues that it was error to instruct the jury that agreement among ten of their number was sufficient for a verdict. This issue has been decided contra to defendant's contention by State v. Gann, 254 Or. 549, 463 P.2d 570, handed down by the Oregon Supreme Court on December 19, 1969.
Affirmed.