
    Argued September 10,
    affirmed November 12, 1964
    STATE OF OREGON v. MITCHELL
    396 P. 2d 572
    
      Richard C. Beesley, Klamath Falls, argued the cause for appellant. On the briefs were McLaren & Beesley.
    
      Sam A. McKeen, Deputy District Attorney, Klamath Falls, argued the cause for respondent. With him on the brief were Dale T. Crabtree, District Attorney, and J. R. Thomas, Deputy District Attorney, Klamath Falls.
    Before McAllister, Chief Justice, and Rossman, Perry, Sloan, O’Connell, Goodwin and Denecke, Justices.
   O’CONNELL, J.

Defendant appeals from a judgment of conviction for the crime of first degree murder. Defendant was sentenced to death, the jury not having recommended life imprisonment. Oregon Constitution, Art I, § 37.

Defendant was charged with killing Dmitre Yerkovich in a movie theater in Klamath Falls. Yerkovich had escorted defendant’s former wife to the theater. Defendant entered the theater, approached his victim from behind, and shot him without warning. Defendant pleaded not guilty and gave notice of intent to rely upon insanity as a defense.

The principal assignment of error is directed at an instruction which could have been interpreted by the jury to mean that if it made no recommendation for a life sentence, the trial judge would have the power to so limit the sentence.

After this appeal was filed Governor Mark Hatfield commuted defendant’s sentence to life imprisonment. Under these circumstances the question raised by this assignment of error is moot.

Defendant also assigns as error the trial court’s refusal to give certain requested instructions relating to the defense of insanity. The instructions given adequately stated the law as it applied to defendant’s theory of the case.

Judgment affirmed.  