Charles E. Evans v. H. C. Cupp, Warden, Oregon State Penitentiary

Habeas corpus. Evans was convicted in Oregon state court on October 23, 1964, of rape, upon a jury verdict of ten for conviction and- two for acquittal. His conviction was affirmed on direct appeal, State v. Evans (1965), 241 Or. 567 , 407 P.2d 621 . His application for a writ of habeas corpus was denied by the district court after an evidentiary hearing. His contentions will be considered seriatim.

I- Unanimous verdict. Evans argues that his conviction by a less than unanimous jury pursuant to Oregon law was a violation of the seventh amendment to the Constitution, made applicable to the states in Duncan v. Louisiana, 1968, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491, 522 . However, Duncan is to receive only prospective application. DeStefano v. Woods, 1968, 392 U.S. 631 , 88 S.Ct. 2093 , 20 L.Ed.2d 1308 . See also Delaney v. Gladden, 9 Cir. 1968, 397 F.2d 17, 22 .

2. Prosecutorial comment. Evans argues that the rule of Griffin v. California, 1965, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 , was violated by the following comments of the prosecutor during closing argument:

Evans’ trial counsel did not object to these remarks either when they were made or on direct appeal,…