State v. Naughten , 3 Or. App. 241 ( 1970 )

471 P.2d 830 (1970)

STATE of Oregon, Respondent,
v.
Hugh Kyle NAUGHTEN, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted June 16, 1970. Decided July 9, 1970. Rehearing Denied August 4, 1970. Review Denied September 22, 1970.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Solicitor Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

PER CURIAM.

Defendant was tried and convicted upon jury trial of the crime of assault and robbery being armed with a dangerous weapon. He did not take the witness stand.

His sole ground of appeal is that the trial court erred in instructing the jury:

"Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence, or by a presumption."

This instruction is not erroneous. State v. Kessler, Or., 89 Adv.Sh. 55, 458 P.2d 432 (1969); State v. Blank, Or. App., 90 Adv. Sh. 285, 464 P.2d 836 (1970).

Affirmed.