109 P. 763 | Or. | 1910
delivered the opinion of the court.
This is an appeal from a conviction of assault with a dangerous weapon. The only question attempted to be brought here by the exceptions is the omission of the court to instruct the jury that “the fact that the defendant did not take the witness stand in his own behalf should not be used as a circumstance against him.” A controversy arose between the attorney for defendant and the court as to whether the instruction was requested or an exception taken to the omission of the court to give it. The trial was had and verdict found on March 11, 1910. Sentence and judgment were rendered on March 14th. On March 16th defendant secured the affidavit of two bystanders, to the effect that, during the argument of the case to the jury, the defendant orally asked the court to give the instruction, and that it was not given. On March 21st defendant’s attorney made a similar affidavit, further stating that he excepted to the refusal of the court to give the instruction. A statement of the proceedings of the trial, setting forth the facts as contended for by defendant, as a bill of exceptions, together with the affidavits, was, on March 22d, served upon G. F. Skipworth, Deputy District Attorney, who tried the case, and on that day forwarded to the judge at Rose-burg, Douglas County; on March 24th the judge indorsed thereon the following statement:
“The above is disallowed for the reason that the court’s attention was not called to such instruction requested, nor was any exception saved in regard to the action of the court as to any such question. Dated March 24, 1910.
J. W. Hamilton, Judge.”
The judgment is affirmed. Affirmed.