State v. Kearney

StrahaN, C. J. — The only point insisted upon by appellant’s counsel was the refusal of the court to set aside the verdict and grant a new trial. It was insisted that there was no evidence before the jury connecting the appellant with the commission of the crime. This motion for a new trial presents no question for review. At the conclusion of the state’s evidence, the defendant might have asked the court to direct the jury to acquit him if there were no evidence whatever implicating him in the commission of the crime charged. (State v. Jones, 18 Or. 256.) [505] And in such case, it would have been the duty of the court to have so charged. But the defendant saw proper to pursue a different course. He entered upon his defense and introduced evidence tending to controvert the state’s case. The judgment appealed from must be affirmed.