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STATE v. SPEER

464 P.2d 709 (1970)

STATE of Oregon, Respondent, v. Erwin Wayne SPEER, Appellant.

Court of Appeals of Oregon, Department 1.

Decided January 29, 1970.

Attorney(s) appearing for the Case

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and BRANCHFIELD, JJ.

SCHWAB, Chief Judge.

Defendant was indicted for assault with intent to kill, ORS 163.280, but was convicted of assault with a dangerous weapon, ORS 163.250. The assault took place when a deputy sheriff was attempting to conduct a "frisk" at the scene of a crime, and the defendant struck the deputy on the head five or six times with a jack handle.

Defendant assigns as error: (1) the failure of the trial court to instruct that defendant could have been found...

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