State v. Schrager

SLOAN, J.

Defendants were convicted on an indictment that ineptly charged them with the theft of a coin box in a telephone booth situate in the lobby of a hotel. On appeal they claim a material variance between the indictment and the proof.

The case started as a trial to a jury. After the state rested, defendants waived the jury and submitted their evidence and the decision in the ease to the court. Their sole defense consisted of the testimony of two university professors of linguistics who testified as to their interpretation of the grammatical or semantic meaning of the indictment. The basis of their testimony is not clear. The court did not rule on the materiality and relevance of the testimony of the two professors, when the state objected, because at that time, a jury was not involved. In reaching the final conclusions of guilt the court simply disregarded the testimony as was his right as a trier of the facts.

Defendants submitted no other defense. There is no ruling of the court that is challenged on appeal save the finding of guilt. The so-called assignments of error set out in the brief are not assignments of error, they are arguments. On appeal we do not reexamine factual disputes such as presented here. Miotke v. Gladden, decided July 17, 1968, 250 Or 466, 443 P2d 617.

Affirmed.