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STATE v. BERRIAN

245 Or. 77 (1966)

414 P.2d 432

STATE OF OREGON v. BENJAMIN FRANKLIN BERRIAN

Supreme Court of Oregon.

Affirmed May 25, 1966.

Petition for rehearing denied July 13, 1966.

Stay of mandate allowed July 19, 1966.

Order for mandate to issue November 22, 1966.

Attorney(s) appearing for the Case

Ronald L. Bryant, Redmond, argued the cause for appellant. With him on the brief were Copenhaver & Larkin.

Douglas A. Shepard, District Attorney, Prineville, argued the cause and filed a brief for respondent.

Before McALLISTER, Chief Justice, and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK, Justices.

AFFIRMED.

LUSK, J.

The defendant was convicted of negligent homicide and has appealed.

The sole assignment of error is based upon the fact that the court instructed the jury on gross negligence. The exception taken to the instructions was in these words:

"Your Honor, the defendant excepts to the Court's submitting the issue of gross negligence to the jury as a separate issue on the grounds that there is no substantial evidence in the record...

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