State v. OliverState v. Oliver
- Reporters:
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- Before:
- Schwab
Defendant was found guilty by jury verdict of two counts of murder.
The state’s evidence included references to de *326 fendant and the two victims having consumed a quantity of alcohol over about a ten-hour period bеfore the victims were slain. It was the state’s theory that defendant had a propensity to become violent after drinking, and that defendant had been involved in an argument with at least one of the victims that ended when defendant committed the murders.
Defendant took the stand in his own behalf. He denied committing the murders. He also testified:
“I wasn’t intoxicated, I’d been drinking on and off that day [the day the murders were committed].”
While at one point defendant did testify he drank about “a pint of whiskey and four or five bottles of beer” the day of the murders, generally his testimony was vague as to the quantity of alcoholic beverages consumed and the specific time period during ‘which they were consumed.
With the agreement of counsel, the trial judge instructed the jury before closing arguments. In these preargument instructions the trial judge defined the elements of the crime charged, murder, with particular reference to the allegations of the indictment against defendant. No exceptions were taken to the preargument instructions. After closing arguments the trial court gave the usual statutory instructions and described the .verdict forms. Then the following occurred :
“THE COURT: Exceptions?
“• * * [DEFENSE COUNSEL]: No instruction on lesser included manslaughter, Your Honor. I admit I—I admit that I did not put in my request but I was working under the assumption it was always given.
“* * * [DISTRICT ATTORNEY]: I don’t *327 think it’s appropriate, defendant’s denied committing the act.
“* * * [DEFENSE COUNSEL]: There’s evidence however brought out by both the prosecution and the defense of moderate to extreme intoxicаtion, Your Honor, which could modify it.
“* * * [DISTRICT ATTORNEY]: I object to manslaughter.
“* * * [DEFENSE COUNSEL] : I except to it.
“° * * [DISTRICT ATTORNEY]: I didn’t argue it, hasn’t been requested.
“THE COURT: Exception allowed * *
Under the statutes in effect before adoption of the new criminal code in 1971 it had been held that proof of intoxication could negate the “premeditated malice” element of first degree murder (former
“Voluntary intoxication is not, as such, a defense to a criminаl charge, but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the dеfendant whenever it is relevant to negative an element of the crime charged.”
*328
The Criminal Law Revision Commission states that
While the statutory rule concerning intoxication thus seems to continue to be the same as it was before adoption of the new code, the definitions of the homicide offenses are considerably different. Following the statutory language of
However, we need not here decide this issue. Even prоceeding on the assumption that intoxication may be a partial defense to murder, in this case, for *329 several reasons, thе trial court did not commit error by not giving a manslaughter instruction.
(1) Defense counsel did not request a manslaughter instruction. “* * * Consideration оf orderly procedure and of fairness to the state and the trial judge suggest that the matter be brought to the attention of the judge аnd of opposing counsel before the commencement of the charge * * State of Oregon v. Nodine, 198 Or 679, 687, 259 P2d 1056 (1953). In the absence of a timely request, failure to give a jury instruction does not ordinarily constitute reversible error. State v. Bias, 248 Or 24, 432 P2d 312 (1967); State v. Abel, 241 Or 465, 406 P2d 902 (1965); State v. Murray, 238 Or 567, 395 P2d 780 (1964); State v. Ellis, 232 Or 70, 374 P2d 461 (1962); State of Oregon v. Gray, 212 Or 175, 318 P2d 570 (1957); State v. Miller, 2 Or App 353, 467 P2d 683, Sup Ct review denied (1970); State v. Hanna, 1 Or App 439, 463 P2d 605 (1970).
(2) In the absence of a request for a specific instruction, the failure to give the instruction is sometimes reviewed in exceptional circumstances if a timely objection under OPS 17.510 was made. State of Oregon v. Nodine, supra. We doubt that defendant’s objection to the failure to instruct on manslaughter was timely in this case. As noted above, the trial judge instructed the jury on the substantive elements of the crime charged before counsels’ closing arguments. The proper time to except to the failure to include a manslaughter instruction would have been at the end of these initial instructions. Then if the trial judge did decide to give a manslaughter instruction both counsel could frame their closing arguments accordingly. Instead, defendant made nо objection until after closing *330 arguments and the court’s final instructions. In the absence of any explanation for a failure to raise the matter sooner, we believe defendant’s objection was untimely. Cf., State of Oregon v. Davis, 194 Or 248, 241 P2d 869 (1952).
(3) Defendant denied committing the murders. This line of defense is mutuаlly exclusive with a claim that he committed the acts while so intoxicated that he could not form a specific intent. Although defendant may well be able to present such alternative theories in his defense, the somewhat unusual and mutually exclusive nature of these two theories underscores the importance of properly bringing them to the attention of the trial court and opрosing counsel by way of a requested instruction or, at least, an objection to the instruction at the first available opportunity.
(4) Defendant denied he was intoxicated on the day of the murders. Although there was evidence that defendant had been drinking, without more specific information as to amount, time and effect, that evidence was insufficient to raise an issue of intoxication undеr
Affirmed.
Notes
“A pеrson commits criminal homicide if, without justification or excuse, he intentionally, knowingly, recklessly or with criminal negligence causes the death of another human being.”
“Except as provided inORS 163.125 , criminal homicide constitutes murder when:
“(a) It is committed intentionally * * *.”