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STATE v. CARTWRIGHT

No. C 78-05-07671; CA 12273.

595 P.2d 1289 (1979)

40 Or.App. 593

STATE of Oregon, Respondent, v. Daniel Webster CARTWRIGHT, Appellant.

Court of Appeals of Oregon.

Decided June 11, 1979.

Attorney(s) appearing for the Case

David E. Groom, Salem, argued the cause for appellant. With him on brief, was Gary D. Babcock, Public Defender, Salem.

Melinda L. Bruce, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on brief, were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C.J., and TANZER, RICHARDSON and ROBERTS, JJ.

ROBERTS, Judge.

Defendant appeals from his conviction for attempted assault in the second degree, contending it was error for the trial judge to convict him for this crime after acquitting him of robbery in the first degree, the crime for which he was indicted. The sole issue before us is whether assault in the second degree is a necessarily included offense of robbery in the first degree. We find that it is not and reverse.

ORS 136.465 states:

"In...

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