State v. Berrian

The defendant was convicted of negligent homicide and has appealed.

The sole assignment of error is based upon the fact that the court instructed the jury on gross negligence. The exception taken to the instructions was in these words:

“Your Honor, the defendant excepts to the Court’s submitting the issue of gross negligence to the jury as a separate issue on the grounds that there is no substantial evidence in the record which could support a finding of gross negligence, and the only question submitted should have been intoxication.”

ORS 163.091, the statute under which the indictment was…