Appeal from Circuit Court, Douglas County. Charles S. Woodrich, Judge. No. 37888.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Stephen H. Miller, Deputy District Attorney, Roseburg, argued the cause for respondent. On the brief was Doyle L. Schiffman, District Attorney, Roseburg.
Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.
Defendant appeals from conviction of murder. ORS 163.115. His only assignment of error is that the court should have submitted to the jury the lesser included crime of manslaughter pursuant to a requested, written instruction which he had submitted to the court. The state has objected to our consideration of the point thus raised, because the defendant took no exception to the refusal to give the instruction. The submission of a written instruction saves the record and we will consider the assignment. Crow v. Junior Bootshops, 241 Or 135, 404 P2d 789 (1965).
The indictment charged the defendant with the murder of a young lady on February 21, 1972 at a time when he was attempting to commit the crime of rape in the first degree upon her. She had sustained ten stab wounds. The physical evidence overwhelmingly established that defendant had assaulted and slain the victim, that her clothes were forcibly torn and some removed, and that defendant had made some sexual attempt upon her, although she had not been sexually penetrated. The defendant's properly admitted oral admissions were that he stabbed the victim to death as she resisted advances which he thought she had encouraged, and as she said "* * * 'Buster, you are not going to rape me.' * * *." Defendant pleaded innocence by reason of mental disturbance and produced
evidence thereof. This evidence showed that he previously had been the aggressor in attempted rapes and had become violent when his advances were resisted. He had been incarcerated and treated in California institutions for mental disturbance involving sexual violence and aberration.
"(1) Except as provided in ORS 163.125, criminal homicide constitutes murder when:
"(c) It is committed by a person * * * who commits or attempts to commit * * * rape in the first degree * * * and in the course of and in furtherance of the crime he is committing or attempting to ...