Tbe rule in Oregon

1973We granted review because tbe trial court’s ruling appeared contrary to Wardius v. Oregon, 412 US 470 , 93 S Ct 2208 , 37 L Ed2d 82, decided June 11, 1973.

1973We granted review because tbe trial court’s ruling appeared contrary to Wardius v. Oregon, 412 US 470 , 93 S Ct 2208 , 37 L Ed2d 82, decided June 11, 1973.

1972The United States Supreme Court denied certiorari ( 394 U.S. 931 ).

1972Tbe defendant was convicted in tbe trial court for selling obscene materials, and tbe Oregon Supreme Court affirmed tbe conviction ( 447 P. 2d 304 ).

1964Generally, an action in deceit will lie only for false representations of matters of past or existing fact, and hence statements of opinion as, for example, expressions by a vendor commendatory of the thing which he is trying to sell are not actionable even though false: Sorenson et ux v. Gardner et ux, 215 Or 255, 258-259 , 334 P2d 471 (representation that a house was “well constructed in a workmanlike manner” — dictum); Smith v. Owen et al, 208 Or 154, 161 , 300 P2d 423 (dictum); Hansen v. Holmberg, 176 Or 173, 179 , 156 P2d 571 ; Horner v. Wagy, supra, 173 Or at 455 (where earlier Oregon ca

1964Generally, an action in deceit will lie only for false representations of matters of past or existing fact, and hence statements of opinion as, for example, expressions by a vendor commendatory of the thing which he is trying to sell are not actionable even though false: Sorenson et ux v. Gardner et ux, 215 Or 255, 258-259 , 334 P2d 471 (representation that a house was “well constructed in a workmanlike manner” — dictum); Smith v. Owen et al, 208 Or 154, 161 , 300 P2d 423 (dictum); Hansen v. Holmberg, 176 Or 173, 179 , 156 P2d 571 ; Horner v. Wagy, supra, 173 Or at 455 (where earlier Oregon ca

1964Generally, an action in deceit will lie only for false representations of matters of past or existing fact, and hence statements of opinion as, for example, expressions by a vendor commendatory of the thing which he is trying to sell are not actionable even though false: Sorenson et ux v. Gardner et ux, 215 Or 255, 258-259 , 334 P2d 471 (representation that a house was “well constructed in a workmanlike manner” — dictum); Smith v. Owen et al, 208 Or 154, 161 , 300 P2d 423 (dictum); Hansen v. Holmberg, 176 Or 173, 179 , 156 P2d 571 ; Horner v. Wagy, supra, 173 Or at 455 (where earlier Oregon ca

1964Generally, an action in deceit will lie only for false representations of matters of past or existing fact, and hence statements of opinion as, for example, expressions by a vendor commendatory of the thing which he is trying to sell are not actionable even though false: Sorenson et ux v. Gardner et ux, 215 Or 255, 258-259 , 334 P2d 471 (representation that a house was “well constructed in a workmanlike manner” — dictum); Smith v. Owen et al, 208 Or 154, 161 , 300 P2d 423 (dictum); Hansen v. Holmberg, 176 Or 173, 179 , 156 P2d 571 ; Horner v. Wagy, supra, 173 Or at 455 (where earlier Oregon ca

1964Generally, an action in deceit will lie only for false representations of matters of past or existing fact, and hence statements of opinion as, for example, expressions by a vendor commendatory of the thing which he is trying to sell are not actionable even though false: Sorenson et ux v. Gardner et ux, 215 Or 255, 258-259 , 334 P2d 471 (representation that a house was “well constructed in a workmanlike manner” — dictum); Smith v. Owen et al, 208 Or 154, 161 , 300 P2d 423 (dictum); Hansen v. Holmberg, 176 Or 173, 179 , 156 P2d 571 ; Horner v. Wagy, supra, 173 Or at 455 (where earlier Oregon ca

1964Generally, an action in deceit will lie only for false representations of matters of past or existing fact, and hence statements of opinion as, for example, expressions by a vendor commendatory of the thing which he is trying to sell are not actionable even though false: Sorenson et ux v. Gardner et ux, 215 Or 255, 258-259 , 334 P2d 471 (representation that a house was “well constructed in a workmanlike manner” — dictum); Smith v. Owen et al, 208 Or 154, 161 , 300 P2d 423 (dictum); Hansen v. Holmberg, 176 Or 173, 179 , 156 P2d 571 ; Horner v. Wagy, supra, 173 Or at 455 (where earlier Oregon ca

1938In Friesenhan v. Maines, 137 Mich. 10 , 100 N. W. 172 , the plaintiff contended that, although the arrest was legal, the unlaw *618 ful detention, made defendant a trespasser ab initio, but the court said: ‘ ‘ Tbe rule invoked has no application to this case.

1938In Friesenhan v. Maines, 137 Mich. 10 , 100 N. W. 172 , the plaintiff contended that, although the arrest was legal, the unlaw *618 ful detention, made defendant a trespasser ab initio, but the court said: ‘ ‘ Tbe rule invoked has no application to this case.

1928R. 1384), where tbe Illinois Supreme Court wrote: “Tbe rule requiring tbe injured party to protect himself from tbe consequences of tbe wrongful act of another by tbe exercise of ordinary effort, care, and expense on bis part, does not apply in cases of nuisances: Jacksonville v. Doan, 145 Ill. 23 ( 33 N. E. 878 ); Jacksonville v. Lambert, 62 Ill. 519 ; Aurora v. Reed, 57 Ill. 29 ( 11 Am.

1928R. 1384), where tbe Illinois Supreme Court wrote: “Tbe rule requiring tbe injured party to protect himself from tbe consequences of tbe wrongful act of another by tbe exercise of ordinary effort, care, and expense on bis part, does not apply in cases of nuisances: Jacksonville v. Doan, 145 Ill. 23 ( 33 N. E. 878 ); Jacksonville v. Lambert, 62 Ill. 519 ; Aurora v. Reed, 57 Ill. 29 ( 11 Am.

1928R. 1384), where tbe Illinois Supreme Court wrote: “Tbe rule requiring tbe injured party to protect himself from tbe consequences of tbe wrongful act of another by tbe exercise of ordinary effort, care, and expense on bis part, does not apply in cases of nuisances: Jacksonville v. Doan, 145 Ill. 23 ( 33 N. E. 878 ); Jacksonville v. Lambert, 62 Ill. 519 ; Aurora v. Reed, 57 Ill. 29 ( 11 Am.

1928R. 1384), where tbe Illinois Supreme Court wrote: “Tbe rule requiring tbe injured party to protect himself from tbe consequences of tbe wrongful act of another by tbe exercise of ordinary effort, care, and expense on bis part, does not apply in cases of nuisances: Jacksonville v. Doan, 145 Ill. 23 ( 33 N. E. 878 ); Jacksonville v. Lambert, 62 Ill. 519 ; Aurora v. Reed, 57 Ill. 29 ( 11 Am.

1926This distinction in pleading is recognized in People v. Ryczek, 224 Mich. 106 ( 194 N. W. 609 ), and in People v. Townsend, 214 Mich. 267 ( 183 N. W. 177 , 16 A. L.

1926This distinction in pleading is recognized in People v. Ryczek, 224 Mich. 106 ( 194 N. W. 609 ), and in People v. Townsend, 214 Mich. 267 ( 183 N. W. 177 , 16 A. L.

1926It is, as said by Mr. Bishop, mere ordinary evidence in rebuttal; and any charge to tbe jury that it is not, as that tbe law looks with disfavor upon it, or that it should be tested differently from other evidence, is erroneous.” (1 Bishop on Criminal Practice. (3 ed.), § 106.) Tbe following instruction was approved in State v. Casey, 108 Or. 386 ( 213 Pac. 771 , 217 Pac. 632 ): “Tbe defendant is not required to prove bis alibi beyond a reasonable doubt, or by a preponderance of tbe evidence, because tbe burden of proof does not rest upon him; but it is sufficient, if you have a reasonable dou

1926It is, as said by Mr. Bishop, mere ordinary evidence in rebuttal; and any charge to tbe jury that it is not, as that tbe law looks with disfavor upon it, or that it should be tested differently from other evidence, is erroneous.” (1 Bishop on Criminal Practice. (3 ed.), § 106.) Tbe following instruction was approved in State v. Casey, 108 Or. 386 ( 213 Pac. 771 , 217 Pac. 632 ): “Tbe defendant is not required to prove bis alibi beyond a reasonable doubt, or by a preponderance of tbe evidence, because tbe burden of proof does not rest upon him; but it is sufficient, if you have a reasonable dou

1926As stated in State v. Chee Gong, 16 Or. 534 ( 19 Pac. 607 ): “Tbe evidence of an alibi was not a defense, except so far as it controverted tbe testimony upon tbe part of tbe State, tending to show that tbe appellants were present and participated in the affair charged in tbe indictment.

1926As stated in State v. Chee Gong, 16 Or. 534 ( 19 Pac. 607 ): “Tbe evidence of an alibi was not a defense, except so far as it controverted tbe testimony upon tbe part of tbe State, tending to show that tbe appellants were present and participated in the affair charged in tbe indictment.

1926This distinction in pleading is recognized in People v. Ryczek, 224 Mich. 106 ( 194 N. W. 609 ), and in People v. Townsend, 214 Mich. 267 ( 183 N. W. 177 , 16 A. L.

1926This distinction in pleading is recognized in People v. Ryczek, 224 Mich. 106 ( 194 N. W. 609 ), and in People v. Townsend, 214 Mich. 267 ( 183 N. W. 177 , 16 A. L.

1923Cas. 383), and In re Hill, 187 Fed. 214 , have no application to the instant case.

1923Tbe rule followed in cases where a purely nominal consideration is given, or where the consideration paid for a note is grossly inadequate, does not control cases where a pre-existing debt constitutes the consideration; and consequently precedents like Hogg v. Thurman, 90 Ark. 93 ( 117 S. W. 1070 , 17 Ann.

1923Tbe rule followed in cases where a purely nominal consideration is given, or where the consideration paid for a note is grossly inadequate, does not control cases where a pre-existing debt constitutes the consideration; and consequently precedents like Hogg v. Thurman, 90 Ark. 93 ( 117 S. W. 1070 , 17 Ann.

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Tbe copy of tbe decree was competent, and for that reason tbe court did not commit reversible error in overruling tbe objection, although tbe remainder of exhibit “U” was incompetent: Coveny v. Hale, 49 Cal. 552 ; Shatto v. Crocker, 87 Cal. 629 ( 25 Pac. 921 ); 38 Cyc. 1376.

1922Tbe copy of tbe decree was competent, and for that reason tbe court did not commit reversible error in overruling tbe objection, although tbe remainder of exhibit “U” was incompetent: Coveny v. Hale, 49 Cal. 552 ; Shatto v. Crocker, 87 Cal. 629 ( 25 Pac. 921 ); 38 Cyc. 1376.

1922Tbe copy of tbe decree was competent, and for that reason tbe court did not commit reversible error in overruling tbe objection, although tbe remainder of exhibit “U” was incompetent: Coveny v. Hale, 49 Cal. 552 ; Shatto v. Crocker, 87 Cal. 629 ( 25 Pac. 921 ); 38 Cyc. 1376.

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).

1922Ever since tbe decision of Kearney v. Snodgrass, 12 Or. 311 , the rule has been that “it is not error, simply, but error legally excepted to, that constitutes ground for reversal.” Tbe doctrine is followed in State v. Tamler, 19 Or. 528 ; State v. Foot You, 24 Or. 61 ( 32 Pac. 1031 ); Watson v. Southern Oregon Co., 39 Or. 481 ( 65 Pac. 985 ); State v. Megorden, 49 Or. 259 ( 88 Pac. 306 ); Anderson v. Aupperle, 51 Or. 556 ( 95 Pac. 330); State v. McAvoy, 57 Or. 1 ( 109 Pac. 763 ); Olson v. Saxton, 86 Or. 670 ( 169 Pac. 119 ).