State v. Barton , 8 Or. App. 186 ( 1972 )

492 P.2d 828 (1972)

STATE of Oregon, Respondent,
v.
Mark Steven BARTON, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted December 3, 1971. Decided January 14, 1972.

Paul Caruso, Beverly Hills, Cal., argued the cause for appellant. With him on the briefs was Oscar D. Howlett, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

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

LANGTRY, Judge.

Defendant appeals from a conviction of first degree murder. ORS 163.010(1). He was jointly indicted with Tina Lee Tremblay, Robert Antonio Tremblay and Raymond David Pister for killing Gary Eugene DeVillez on July 16, 1969. They were tried separately. Defendant assigns as error (1) the trial court's instruction on certain presumptions, and (2) instruction on "felony murder" based on burglary. Our resolution of these assignments of error does not require a statement of facts.

(1). Defendant failed to take proper exception to the instruction of which he complains. The exception made was:

"* * * [W]e except to submitting the first degree murder instruction including all of the definitions contained in those instructions * * *."

The purpose of an exception is to apprise the trial court of any error in the instructions so that it may correct the error. State v. Charles, 3 Or. App. 172, 469 P.2d 792, Sup.Ct. review denied (1970). Defendant's exception failed to do this.

The merits of defendant's assignment do not warrant exception to the general rule that questions not raised in the trial court will not be considered on appeal. State v. Phillips, Or. App., 92 Adv.Sh. 95, 481 P.2d 381, Sup.Ct. review denied (1971).

(2). The court instructed the jury that if it found the defendant or his accomplices caused the death of DeVillez while committing or attempting to commit a burglary in a dwelling, it was first degree murder. Defendant argues the instruction was error because the assault which was coupled with the breaking and entering to make up burglary merged with the ultimate killing, and, therefore, the burglary could not be relied on as an ingredient of "felony murder." We considered precisely the same question in a companion case, State v. Tremblay, 4 Or. App. 512, 479 P.2d 507, Sup.Ct. review denied (1971), and decided it contrary to the defendant's position. Defendant cites no authorities we did not consider in Tremblay.

Affirmed.