The defendant, Chester Raymond Hedrick, was indicted in Multnomah county on October 24, 1961 for the crime of rape. ORS 163.210. He was found guilty by a jury and sentenced to imprisonment in the penitentiary for an indeterminate term not exceeding 20 years, from which judgment he appeals.
Defendant’s brief contains five assignments of error. The defendant first asserts that the trial court erred in permitting the state “to attempt to impeach the defendant by inquiring into a former judgment of conviction which was on appeal and not final.”
Although defendant’s assignment of error does not comply with our rules, we have examined the record and find that during the cross-examination of defendant he was asked whether in 1961 he had been convicted in Multnomah county “of a crime of assault with intent to commit rape by a plea of guilty.” The question was objected to as follows :
“MR. HASLETT: I object to the question on the grounds and for the reason there is a proper *133 way to do this. He must at this time submit a transcript of the judgment. You can ask him if he has been convicted of a crime but you cannot ask him if he has been convicted of a specific crime and the statute says the State must then set forth by transcript and judgment and counsel well knows there is no final judgment in the case. This is only being done to highly inflame the jury and prevent the defendant from having a fair trial in the eyes of this jury.”
After a colloquy between court and counsel about the proper way to prove a prior conviction, the objection was overruled and the defendant answered “yes” to the impeaching question.
It will be noted that the objection went to the form of the question and the manner of proving a prior conviction, and that only incidentally did counsel state “and counsel well knows that there is no final judgment in the case.” The trial judge was not asked to decide whether a witness could be impeached by showing a prior conviction from which an appeal was pending. That is the question which we are now asked to decide, and since the question was not raised in the trial court, we decline to consider it here.
State v. Kloss,
Defendant next asserts that the trial court erred in denying defendant’s motion for mistrial because of certain misconduct of counsel for the state. The alleged misconduct occurred when counsel for the state was offering evidence of a prior conviction of defendant in a California court. The judgment described the *134 crime of which defendant had been convicted only by reference to a section of the California penal code. When counsel was reading the judgment to the jury he interpolated after the number of the code section the words “which is statutory rape.” Counsel for defendant objected and then moved for a mistrial which was denied.
"Whether a mistrial should be allowed is a matter within the sound discretion of the trial court.
State v. Roden,
Defendant also contends that the trial court erred in failing to give three of his requested instructions. We have examined the record and find that the substance of the requested instructions was fully covered by the instructions given by the court. These assignments of error are without merit.
Finding no error, the judgment is affirmed.