State v. Kelly

Upon trial by jury, defendant was convicted of burglary in a dwelling in violation of ORS 164.230. ① He appeals contending that the trial court erred (1) in refusing to grant a mistrial after the jury heard some testimony concerning a pistol found near the scene but which was not shown to have been used by, or connected with, defendant, and (2) in refusing to grant a motion for judgment of acquittal on the grounds that the state had not proved an intent to steal.

On the afternoon of November 20, 1969, the complaining witness, James Robert Freeman, was reading in bed at his home near Florence…