STATE OF OREGON v. BRANNON, 238 Or. 189

McAllister, c. j. The defendant was convicted of burglary not in a dwelling and sentenced to eight years in the penitentiary. The maximum sentence authorized by statute is ten years. The only contention on appeal is that the sentence constituted cruel and unusual punishment and was not founded upon principles of reformation, but rather upon vindictive justice. Oregon Constitution, Art I, §§ 15,16. It is admitted that defendant was convicted of desertion from the United States Army and was sentenced to three years in the United States disciplinary barracks at Camp G-ordon.

He has served two terms in the Oregon penitentiary, one of 15 months for burglary, and another of 18 months for receiving and concealing stolen property. The defendant testified that he is an alcoholic, and his record includes numerous convictions for drunkenness and minor offenses. The trial court had the benefit of a presentence report before imposing sentence. In passing sentence the court indicated its belief that the sentence imposed offered the most promise of rehabilitating the defendant. On the authority of State v. Clark, 237 Or 596, 392 P2d 643 (May 27, 1964), and State v.

Montgomery, 237 Or 593, 392 P2d 642 (May 27, 1964), the judgment is affirmed. O’Connell, J., did not participate in the decision of this case.