This is a delayed appeal authorized as a result of a post-conviction proceeding. The appeal is from a conviction, upon trial by jury, of assault with a dangerous weapon. ORS 163.250.
On March 21, 1966, at about 10:30 p.m., the defendant, armed with a gun, demanded admission into the home of a Mr. and Mrs. McClain. When refused, he forced his way in and severely beat the McClains. On May 5,1966, the McClains identified the defendant in a Marion County police lineup. At trial the Mc-Clains testified without objection as to their identification of the defendant in the lineup.
On appeal, defendant contends that the lineup identification should not have been admitted because he did not have counsel at the lineup, and because he had not previously been taken before a magistrate as required by ORS 133.550.
There is no substance to this contention. The record is silent as to whether he had previously been taken before a magistrate, and contains nothing to indicate whether he should have been. Further, the rule that counsel is to be present at lineups has no application to a lineup conducted prior to June 12, 1967. State v. Smith, 1 Or App 153, 458 P2d 687 (1969). There is no claim that the lineup was unfair.
The defendant makes two other assignments of error. They do not warrant discussion.
Affirmed.