Appeal from Circuit Court, Josephine County. Samuel M. Bowe, Judge. No. 73-17-C.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Richard K. Lane, Deputy District Attorney, Grants Pass, argued the cause for respondent. With him on the brief was Robert M. Burrows, District Attorney, Grants Pass.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
Defendant appeals his jury trial conviction on a charge of criminal activity in drugs (ORS 167.207). His sole assignment of error challenges the propriety of certain instructions given to the jury from which exceptions were taken.
Defendant and a companion had been arrested on December 31, 1972 for soliciting a ride while standing in a roadway (ORS 483.218). When the arresting officers conducted a search of defendant's person for weapons, they discovered a plastic prescription bottle in defendant's right front pocket. The bottle contained
33 purplish-blue tablets, most of which were individually wrapped in aluminum foil. There was no prescription label attached to the bottle. The arresting officers suspected the tablets contained LSD, informed defendant he was under arrest on the drug charge and read him his Miranda*fn1 rights.
At trial it was stipulated that the tablets found in the bottle in defendant's pocket contained LSD, and the sole issue was whether defendant knew that the prescription bottle contained LSD. Defendant testified that his companion had handed him the bottle shortly before they were arrested and that when the officer found the bottle he questioned defendant: "* * * 'Ah ha, what do we have here?' * * *." Defendant, in the testimony following this quotation by him of the officer's question, said:
"And I don't know, I couldn't really say. He thought it was acid, and I just -- I couldn't say. I looked at Kenneth [his companion] to, you know, to try to read his eyes * * * if he knew what it was * * *."
The police officer testified that later, after receiving his Miranda warnings, defendant had responded to a question on what the tablets were: "* * * 'Yes, I think they're LSD. Acid.'"
Defendant attempted to explain the above response by testifying that
"I just agreed with the officers, what they thought it was. I mean it could -- I don't know of any other drug that is in tablet form. I assumed that it was, too * * *."
Defendant's defense was thus based on ...