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STATE v. LOCKE

489 P.2d 991 (1971)

STATE of Oregon, Respondent, v. Jimm Bob LOCKE, Appellant.

Court of Appeals of Oregon, Department 1.

Decided October 19, 1971.

Rehearing Denied December 9, 1971.

Attorney(s) appearing for the Case

William Frye, Eugene, argued the cause for appellant. With him on the brief was Robert D. Woods, Eugene.

Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

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

Rehearing Denied December 9, 1971. See 491 P.2d 214.

LANGTRY, Judge.

Defendant appeals from conviction of second degree murder. He was charged with first degree murder.

The only assignment of error concerns the following jury instruction:

"I instruct you that, if you believe from the evidence and beyond a reasonable doubt, that the defendant could have avoided any...

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