State v. Smith

PER CURIAM.

Defendant was indicted for murder.¹ The court instructed the jury upon the lesser included offense of attempted reckless manslaughter. The jury found defendant guilty of the lesser offense, and the court entered the conviction accordingly.

Although he does so on appeal, defendant did not object to either the instruction or the entry of conviction in the trial court. The state, however, concedes error, because in State v. Smith, 21 Or App 270, 534 P2d 1180, rev den (1975), we held that there can be no crime involving an attempted reckless act.² We note the error as apparent on the face of the record, Rule 7.19, Rules of Procedure of this court.

Reversed.

1 Defendant is not appealing his conviction of attempted assault in the first degree based on another count in the same indictment.

2 The parties discuss possible reindictment at length. We think it premature to address reindictment at this stage.