Appeal from Circuit Court, Douglas County. Charles S. Woodrich, Judge. Nos. 39607, 39606.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellants. With him on the brief were Gary D. Babcock, Public Defender, and Robert C. Cannon, Deputy Public Defender, Salem.
Doyle L. Schiffman, District Attorney, Roseburg, argued the cause for respondent. With him on the brief was Brian R. Barnes, Deputy District Attorney, Roseburg.
Foley, Judge. Langtry, Presiding Judge, and Thornton, Judge.
Defendants were convicted by jury of robbery in the first degree in violation of ORS 164.415 and received five-year sentences. They appeal, asserting that the trial court should have granted a motion for a
judgment of acquittal and also erred in instructing the jury on the use of a "dangerous" weapon when defendants were charged with use of a "deadly" weapon.
The indictments against each of the defendants were identical and read, in pertinent part, as follows:
"The said JOHN HOWARD HANSON [RONALD WARD HUGHES] on or about the 8th day of February A.D. 1973, in the said County of Douglas and State of Oregon, then and there being, did unlawfully and knowingly threaten the immediate use of physical force upon Jimmy Clark Butler, by being armed with a deadly weapon, to-wit: a knife, and did attempt to use said deadly weapon to threaten the said victim, Jimmy Clark Butler, while in the course of committing theft of property, towit: cash, lawful money of the United States, in the amount of Eighty and no/100 Dollars ($80.00), with the intent of preventing resistance to the said defendant's taking and retention immediately after the taking of said property, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."
ORS 164.415 (1) provides that the crime of robbery in the first degree can be committed in any of several ways:
"(1) A person commits the crime of robbery in the first degree if he violates ORS 164.395 [robbery in the third degree] and he:
"(a) Is armed with a deadly weapon; or
"(b) Uses or attempts to use a dangerous ...