*1 24, 1977, Argued October for new trial reversed and remanded 27,1978 January June reconsideration denied March review denied OREGON, Respondent, STATE OF THAYER, Appellant. LEE DAVID 8120) (No. 76-11-16358, CA C *2 Kuhn, Defender, Salem, J. Marvin Public Deputy the cause for him on the brief argued appellant. With Babcock, Defender, D. Public Salem. Gary General, H. Denney, Thomas Assistant Attorney Salem, him on argued the cause for With respondent. General, Redden, the brief were A. Attorney James General, Laue, and Al J. Salem. Solicitor Schwab, and and Before Chief Thornton Judge, Buttler, Judges.
SCHWAB, C. J.
SCHWAB, C. J. appeals by jury Defendant from his conviction a 163.115(l)(a), assigns murder, ORS and as error give requested trial court’s failure to instructions criminally negligent homicide, and permit impeach the court’s refusal to a by introducing state’s witness ness had lied on a that the wit-
previous occasion. provides: ORS 136.460 "Upon charge a consisting for of different degrees, jury may find guilty the defendant not charged accusatory instrument any degree attempt inferior thereto or of an commit the any crime or such inferior thereof.” provides: ORS 136.465 cases,
"In all
the defendant
be found
any crime the commission of
necessarily
which is
in-
cluded
that with which he is
accusatory
instrument or of an attempt
to commit such crime.”
*3
To be a "lesser
statutes,
included” offense under these
party
the offense which a
wishes to be submitted to the
trier of fact must be either
within the
statutory
alleged
principal
actually
definition of the
offense or
charging
Nye,
instrument. State v.
273
(1975).
825, 827-28,
Or
"The right limitation on the the of either prosecution or the defendant request to lesser included offense instructions under these that there statutes is evidence, must be or an inference which can be drawn evidence, from the supports which the requested instruc- tion jury so that the could rationally consistently and find the of the lesser offense and * * *” innocent greater. of the Washington, State v. (1975). 829, 543 P2d manslaughter Here, in the first and second criminally negligent statutorily homicide are subsumed in the murder, offense of and murder is the principal offense of which defendant was convicted. 163.005; 163.115; 163.118; 163.125; See ORS 163.145. Thus, the there remaining sole whether evidence which the the lesser giving warranted of included instructions defendant. requested by record defend
There is much evidence in the that on amount alcohol significant ant had consumed alcohol evening the afternoon and of the murder. If the the rendered him intoxicated under ORS 161.125 in the first might only homicide Thus, there is not murder.1 that degree, appears the "could the record from which find the defendant rationally consistently State greater.” the lesser offense and innocent of at Washington, v. 836. supra manslaugh- state that requested The contends with instruction in be inconsistent ter this did not own of the case —that theory trial court thus the commit homicide —and manslaughter. State instruct refused to properly Court noted: Washington, supra, Supreme suggested apply its "Apparently the dissent would support on in the evidence relied approach even when by been presented had not the lesser offense instruction the prosecu- gleaned the defendant but had been insist he who continued to by tion’s own case a defendant was guilty by As its to nothing. evidenced application (1975)], v. Nye State [273 Or argue defendants approach dissent’s would allow defense, at the while insanity or as a complete an alibi for sufficient time facts sifting same state’s evidence contrary prose- running support any inference of the elements cution’s case on one more criminally negligent Defendant’s instruction on homicide— rejected. causing by negligence properly a death criminal —-was times. victim had stabbed more than 50 evidence showed that been *4 Stabbing negligently. See ORS someone more than 50 times cannot occur 161.085(10). 163.145; Similarly, requested instruction on rejected: undisputed properly in the second was reasonably permit the that the not inference fact of stab wounds does manifesting stabbing merely an indifference without extreme reckless 161.085(9). 163.125; 163.118; ORS to the value of human life. See instruc- demanding on that basis alone
charged —and
Defendants
offenses.
one or more lesser
tions on
on
requesting
in
instructions
little to lose
then have
drawn
might be
inferences which
crimes based on
other
from
they
If
were
evidence.
of the state’s
portions
on
offense instructions
to demand lesser
allowed
little
evidence,
would have
defendants
basis of such
as
of their own
forward with evidence
to come
incentive
to the actual
therefore,
and,
place
events which took
complete
alibi or other
argue
free to
a fictitious
would be
Defendant also contends the trial court improperly permit impeach refused to him to a state’s by introducing witness evidence that the witness had previous lied on a occasion about a collateral matter. likely As the issue is retrial, to be raised on we resolve ruling it now. The trial court’s was correct. ORS 45.600.2
Reversed and remanded for new trial. dissenting part. THORNTON, J., presented judge The issue is whether refusing committed reversible error to instruct on manslaughter. lesser included offense of pleaded Defendant not to murder. At trial his theory of the case was that he did not commit the crime. He testified that he had not committed the murder and that he was not intoxicated. Was he possible nevertheless, because of other evidence of his intoxication, entitled to a lesser included offense manslaughter? upon instruction on not, think based my reading of the decisions discussed below. App In State Atkins, rev’d, grounds on other 269 Or a similar arose. We held that trespass even if second criminal was a lesser degree burglary, included offense of second defendant was not entitled to an instruction on second trespass criminal where he testified that had he been sought in a tavern at the time the state’s evidence provides: ORS 45.600 may impeached by party against "A witness whom he was called, by contradictory by general evidence or evidence that his reputation for truth is bad or that his moral character is such as to belief; unworthy may render him impeached by but he not be particular acts, wrongful except by that it be shown by judgment, his examination or the record of the that he has been convicted of a crime.” from a warehouse. he wire stealing show was we stated: argument rejecting testimony "Defendant contends as to his intoxica- his tion, if negate it were by jury, believed crime of burglary because defendant would have capable forming been intent to commit Thus, contends, when building. he entered the he he would be trespass if the found he criminal entered the warehouse when he was so intoxicated that had no intent to steal. testified argument illogical.
"This time the state’s evidence that he in a tavern at the *6 the jury the wire. If sought stealing to show he was him either acquit it to him of required believed Oliver, v. 13 Or trespass. or criminal State burglary Cf. (1973): 330, 41, 324, P2d Ct review denied App Sup 509 " committing the murders. 'Defendant denied This with a mutually line of defense is exclusive he so intoxicated claim that committed acts while * * * .’ specific that he not form a intent could * * * be defense to defendant’s defense would a Where charges principal well crime all lesser included as as the lesser charged, need not instruct on court v. reason alone. State included offense for this Cf. 552, (1972), O’Berry, 556, Sup 505 Ct 11 Or 503 P2d App ” ** * (1973). at App review 14 Or 606-07. denied v. The issue was raised State again same 601, (1973), where 15 Or Stoneberg, App degree robbery. with second defendant was charged a give requested There we held that the refusal to error, was not on lesser included offenses instruction In addition we Atkins. approval with from quoting said: contends, his acts
"If, into and entry his as defendant not be a then could 'prank,’ within the home were that robbery, requires which either the crime of guilty of attempting committing or it occur 'in course theft’, 164.395(1), attempted or of theft ORS commit App at 605. theft itself.” Or Coffin, App The arose in State same issue (1977), 391, where defendant 819, rev den His guilty. He burglary. pleaded with charged defense was essentially alibi. he did not Although take the stand he a made detailed statement exculpatory the police. There we held that there was no evidence to support a lesser included offense instruction crimi- nal trespass went on to point out further that requested instruction was totally inconsistent with defendant’s own theory of the case. v. Engblom, State
Similarly, 31 Or App rev den P2d inas Coffin, we said that was not error to refuse the requested lesser included instruction, the same citing reasoning.
Applying bar, above at I precedents conclude that where entire defense mutually exclusive with the within the instruction, only and the evidence or inferences instruction are supporting gleaned case, from the state’s the instruction need not be given. pronouncement most recent by our Supreme
Court on this question is State v. Washington, 273 Or 829, 836, 543 P2d 1058 which is discussed in the majority opinion.
The crux of with my disagreement the majority concerns the interpretation paragraph Washington set out opinion. interpret *7 Washington to mean that where from paragraph defendant denies the crime his defense is alibi, that of mistaken identity or other exculpatory defense, is not judge required give included offense instruction. Atkins, Stoneberg, Engblom my view Coffin
are completely consistent with the quoted paragraph Washington. conclusion is not. majority’s For these reasons dissent from this respectfully of the portion majority opinion.