State v. Sallee

Sep 8, 1965
Reporters:
, ,
Before:
Connell
O’CONNELL, J.

This is an appeal from a conviction of the crime of knowingly uttering and publishing a forged bank check. The ‍‌​​​​​‌‌‌​​‌‌​‌‌‌​​‌​‌​​​‌​​​​​‌‌​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌​‌​‌‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​​‌‌​‌‌​​​‌‌​‍appeal is based upon the contention that defendant was not informed of his right to remain silent or of his right to counsel and that ORS 133.550 was violated in that he was not promptly brought before a magistrate.

Since the alleged violation of ORS 133.550 was ‍‌​​​​​‌‌‌​​‌‌​‌‌‌​​‌​‌​​​‌​​​​​‌‌​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌​‌​‌‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​​‌‌​‌‌​​​‌‌​‍not asserted at the trial, it cannot be raised upon appeal. State v. Allen, 241 Or 95, 404 P2d 207 (1965).

Defendant concedes that he was informed of his right to counsel but he contends that he was not so informed until after he had been interrogated ‍‌​​​​​‌‌‌​​‌‌​‌‌‌​​‌​‌​​​‌​​​​​‌‌​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌​‌​‌‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​​‌‌​‌‌​​​‌‌​‍by the police. The interrogating officer testifiéd that he informed defendant of his right to counsel prior to interrogation.

There was a similar conflict in the evidence as to whether defendant was informed of his right to remain silent. Defendant duly objected ‍‌​​​​​‌‌‌​​‌‌​‌‌‌​​‌​‌​​​‌​​​​​‌‌​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌​‌​‌‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​​‌‌​‌‌​​​‌‌​‍to the use of defendant’s admission made during interrogation on. the two grounds noted above. The trial court overruled defendant’s objection, thus finding, in effect,- that defendant was informed of his rights prior to interrogation and that he waived these rights at ‍‌​​​​​‌‌‌​​‌‌​‌‌‌​​‌​‌​​​‌​​​​​‌‌​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌​‌​‌‌‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌​​‌‌​‌‌​​​‌‌​‍the time he made the admissions to the police. We have no basis for making a contrary finding.

The judgment is affirmed.