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JACK v. MAASS

87-C-11048; CA A50071 (Control); 87-C-11132; CA A50072.

776 P.2d 593 (1989)

97 Or.App. 555

Bennie Roger JACK, Respondent, v. Manfred MAASS, Superintendent, Oregon State Penitentiary, Appellant.

Court of Appeals of Oregon.

Decided July 19, 1989.

Attorney(s) appearing for the Case

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

David B. Kuhns, Salem, argued the cause and filed the brief for respondent.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

In these related post-conviction cases, consolidated for the purpose of this opinion, the state appeals the grant of a new trial on petitioner's convictions for attempting to murder two people with a gun and of being an ex-convict in possession of a firearm. The charges stemmed from the same incident but were severed for trial. At the attempted murder trial, petitioner's attorney did not object to this jury instruction:

"If you have a reasonable...

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