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STATE v. SMITH

No. C77 11 15505; CA 10694.

586 P.2d 829 (1978)

37 Or.App. 267

STATE of Oregon, Respondent, v. Willie Ray SMITH, Appellant.

Court of Appeals of Oregon.

Decided November 21, 1978.

Attorney(s) appearing for the Case

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C.J., and THORNTON, TANZER and BUTTLER, JJ.

PER CURIAM.

Defendant was indicted for murder.1 The court instructed the jury upon the lesser included offense of attempted reckless manslaughter. The jury found defendant guilty of the lesser offense, and the court entered the conviction accordingly.

Although he does so on appeal, defendant did not object to either the instruction or the entry of conviction in the trial court. The state, however, concedes error, because in

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