Opinion
Argued October 25, 1965
Affirmed December 15, 1965
Appeal from Circuit Court, Hood River County.
M.W. WILKINSON, Judge.
Lawrence A. Aschenbrenner, Public Defender, Salem, argued the cause and filed a brief for appellant.
John F. Cushman, District Attorney, Hood River, argued the cause and filed a brief for respondent.
Before McALLISTER, Chief Justice, and PERRY, SLOAN, GOODWIN, DENECKE, LUSK and SCHWAB, Justices.
IN BANC
AFFIRMED.
The defendant was convicted of the crime of assault with a dangerous weapon and appeals.
The sole question raised on the appeal is whether ORS 163.250, the statute denouncing the crime of assault with a dangerous weapon, is unconstitutional, because ORS 163.320, which defines the crime of pointing a firearm at another, prescribes (as it is asserted) "a different and lesser punishment for the same act committed under the same circumstances by persons in identical situations."
After the conviction of the defendant the identical question was decided adversely to his contention in Rose v. Gladden, 241 Or. 202, 405 P.2d 543. The opinion in that case demonstrates that there is no constitutional infirmity in the statute and leaves nothing further to be said upon the subject.
The brief of the defendant contains no assignment of error as required by Rule 19, Rules of the Supreme Court. This omission can scarcely be charged to the Public Defender, who represented the defendant on the appeal, for the question was not raised below and hence there was no ruling by the court on the trial to which error could be assigned. We again remind the profession that it is not the function of this court to pass upon abstract questions of law, but to review alleged errors of the trial court when properly raised on the record, and that, in criminal, as well as in civil cases, the right to review depends upon observance of this elementary requirement. See State v. Williams, this day decided; Benson v. Gladden, 242 Or. 132, 407 P.2d 634; State v. Abel, 241 Or. 465, 406 P.2d 902, and cases there cited.
The judgment is affirmed.