State v. Hale
| Decision Date | 14 July 1975 |
| Citation | 75 Adv.Sh. 2623,537 P.2d 1173,22 Or.App. 144 |
| Parties | STATE of Oregon, Respondent, v. Wallace HALE, Appellant. |
| Court | Oregon Court of Appeals |
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
Defendant was convicted by a jury of rape. ORS 163.375. Defendant did not testify. His principal assignment of error is the trial court's failure to give defendant's requested instruction to the effect that failure of defendant to testify did not raise any presumption or inference of guilt. The state does not challenge the form of the requested instruction or the timeliness of the request, but contends only that Oregon law does not require such an instruction be given on request by a defendant. The state argues that the following from State of Oregon v. Patton, 208 Or. 610, 303 P.2d 513 (1956), is 'mere dictum.'
208 Or. at 614, 303 P.2d at 515.
Suffice it to say that from our vantage point the 'dictum' appears exceedingly firm. We agree with defendant on this issue.
In a second assignment of error defendant contends that the trial court erred in receiving into evidence over defendant's objection a police report reciting among other things that defendant had previously served time in prison for burglary. Defendant's contention is correct. While other portions of the police report may have been material and admissible, the portion about a previous burglary conviction was neither. State v. Manrique, 75 Or.Adv.Sh. 386, 531 P.2d 239 (1975).
Reversed and remanded for a new trial.
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...Court of Appeals opinion was that although the defendant has an absolute right to have such an instruction given under State v. Hale, 22 Or.App. 144, 537 P.2d 1173 (1975), and State v. Patton, 208 Or. 610, 303 P.2d 513 (1956), the giving of the instruction over his objection unjustifiably i......
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