
    Argued October 30,
    affirmed November 5, 1973
    STATE OF OREGON, Appellant, v. JAMES CHARLES McPEAK (No. C 73-04-1086 Cr), Respondent.
    
    515 P2d 182
    
      Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
    
      Deane 8. Bennett, Beaverton, argued the cause for respondent. With him on the brief was Walter L. Martinj Portland.
    .Before Schwab, Chief Judge, and Langtry and Tanzer, Judges.
   PER CURIAM

Affirmed on procedural grounds. But as to the merits see State v. McKay, 15 Or App 180, 515 P2d 183 (1973), Sup Ct review denied (1974).  