State v. Donche

PER CURIAM.

The defendant, upon trial by jury, was found guilty of burglary not in a dwelling. He appeals principally on the ground that the trial court should have granted his motion for judgment of acquittal for lack of sufficient evidence to create a jury question as to his guilt.

On May 20, 1968, at about 1:30 a.m., a man noticed an automobile cruising back and forth in front of a market in Portland. He noticed two men get out of the vehicle and enter the market. He then called the police.

The officers who investigated the call found two men in the store, the defendant and one Dizick, The officers noted physical evidence indicating that the store was or very recently had been in the process of being burglarized.

The defendant’s testimony was that on the previous day he had been repairing Dizick’s automobile, that Dizick had loaned the automobile to one Wilson who did not return it; that based on their knowledge of Wilson’s intention to burglarize the market in question the defendant and Dizick had driven to the store in an attempt to locate Wilson and the automobile. The defendant offered no evidence other than his own testimony. Neither Dizick nor Wilson were called as witnesses.

We do not find it too surprising that the jury chose not to believe the defendant’s story. To say the least, the evidence supports the jury’s verdict.

The only other assignment of error made by the defendant is that the jury found him guilty by a verdict of 10-2 rather than by unanimous verdict. Such a verdict is proper. State v. Gann, 254 Or 549, 463 P2d 570 (1969).

'Affirmed.