STATE v. SCHRAGER AND MOSS, 250 Or. 597 (1968)

443 P.2d 630

STATE OF OREGON, Respondent, v. LEO SCHRAGER and JOSEPH OLIVER MOSS, Appellants.

Oregon Supreme Court.
Argued July 12, Affirmed July 24, 1968

Appeal from Circuit Court, Multnomah County.

HARLOW F. LENON, Judge.

AFFIRMED.

Julian Herndon, Jr., Portland, argued the cause and filed a brief for appellants.

Jacob B. Tanzer, Deputy District Attorney, Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.

Before PERRY, Chief Justice, and SLOAN and GOODWIN, Justices.

Page 598

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 case 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 P.2d 617.

Affirmed.

Page 599