Opinion
Submitted on record and briefs September 25, 1970
Affirmed October 2, 1970
Appeal from Circuit Court, Lane County.
F. GORDON COTTRELL Judge.
James R. Strickland, Eugene, filed the brief for appellant.
Jacob B. Tanzer, Solicitor General, Salem, filed the brief for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.
Before SCHWAB, Chief Judge, and LANGTRY and BRANCHFIELD, Judges.
AFFIRMED.
Defendant was convicted of threatening the commission of a felony, ORS 161.330, and placed on probation.
Later, after hearing, the probation was revoked. The evidence was that in addition to failing to meet certain conditions of probation, the defendant had committed an assault and battery.
On appeal defendant contends that in the revocation proceeding the trial court should not have received testimony regarding the alleged assault and battery because he had not yet been tried for that crime. This court held in State v. Spicer, 3 Or. App. 80, 81, 471 P.2d 865 (1970):
" '* * * It is not necessary to revocation that the person on probation be convicted of a new crime, but only that the trial judge be satisfied that the purposes of probation are not being served, or that the terms thereof have been violated * * *.' Barker v. Ireland, 238 Or. 1, 4, 392 P.2d 769 (1964)."
Affirmed.