State v. Erbs , 1972 Ore. App. LEXIS 928 ( 1972 )

SCHWAB, C. J.,

specially concurring.

While I concur in the conclusion reached by the majority as to both assignments of error, I wish to note a difference of emphasis as to the first assignment of error. If the trial court had erred only by instructing the jury that in order to convict the defendant of attempted rape it had to find that the defendant used force, the error, although clear, would have been harmless. That instruction merely added an additional element of proof and served only to benefit the defendant, albeit improperly. However, when the trial court in effect instructed the jury that the age of the victim, i.e., whether she was under or over the age of consent was immaterial, the jury was told that it could find the defendant guilty even though one of the material elements of the charge as set forth in the indictment was not proven. This instruction placed the proceedings beyond salvage.