
    Argued January 19,
    affirmed January 29, 1970.
    Motion to dismiss petition for review allowed by Supreme Court March 4, 1970
    STATE OF OREGON, Respondent, v. ERWIN WAYNE SPEER, Appellant.
    
    464 P. 2d 709
    
      Gary D. Babcock, Public Defender, Salem, argued the causé and filed the brief for appellant.
    
      Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General and Jacob B. Tanzer, Solicitor General, Salem.
    Before Schwab, Chief Judge, and Fort and Branchfield, Judges.
   SCHWAB, C. J.

Defendant was indicted for assault with intent to Mil, OBS 163.280, but was convicted of assault with a dangerous weapon, OBS 163.250. The assault took place when a deputy sheriff was attempting to conduct a “frisk” at the scene of a crime, and the defendant struck the deputy on the head five or six times with a jack handle.

Defendant assigns as error: (1) the failure of the trial court to instruct that defendant could have been found guilty of assault with intent to Mil without malice; and (2) the court’s instruction to the jury that it could find defendant guilty by a verdict of ten of its number.

Assuming, but not deciding, that the court should have instructed on the lesser included offense of attempted manslaughter, there was no conceivable prejudice. The lesser included offense which defendant contends should have been the subject of an instruction carries with it a maximum penalty of 15 years, State v. Collis, 243 Or 222, 413 P2d 53 (1966), while the still lesser included offense of which he was found guilty carries only ten.

The remaining assignment has been decided adversely to defendant’s contention by State v. Gann, 254 Or 549, 463 P2d 570 (1969).

Affirmed.  