The defendant was charged in one indictment, but in two counts with the crime of (1) burglary in a dwelling, and (2) larceny in a dwelling. He was found guilty on both counts and sentenced to concurrent terms of imprisonment. The defendant appeals and complains that the jury was not told that he could be guilty of one crime and not guilty of the other. The trial court instructed the jury on the elements of each offense and submitted the following four verdict forms with appropriate instructions as to each:
1. Guilty of Count I.
2. Not Guilty of Count I.
3. Guilty of Count II.
4. Not Guilty of Count II.
The verdict forms and instructions thereon clearly advised the jury of their four options. If their determination as to one crime was to be determinative of the other, only two verdict forms would have been necessary. No proposed instruction was- properly presented to the court and no challenge was made to the instructions given.
We adhere to the rule that failure to give an instruction does not constitute error unless the instruction is requested and refused. State v. Gutherie, 1 Or App 386, 462 P2d 702 (1969); State v. Anderson, 242 Or 585, 411 P2d 259 (1966); State v. Chase, 106 Or 263, 211 P 920 (1923).
Affirmed.