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STATE v. MARTINKA

468 P.2d 903 (1970)

STATE of Oregon, Respondent, v. Alphonse D. MARTINKA, Appellant.

Court of Appeals of Oregon, Department 2.

Decided May 7, 1970.

Rehearing Denied June 2, 1970.

Review Denied July 8, 1970.

Attorney(s) appearing for the Case

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John L. Snyder, Dist. Atty., Dallas, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

LANGTRY, Judge.

Defendant was convicted of burglary not in a dwelling (ORS 164.240) and appeals. He assigns as error: (1) the instruction that 10 or more of the jury could arrive at a verdict, and (2) an instruction on voluntary intoxication taken from ORS 136.400.

(1). This alleged error was disposed of adversely to defendant's contention in State v. Gann, 89 Or.Adv.Sh. 853, 463 P.2d 570

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