Appeal from Circuit Court, Jackson County. James M. Main, Judge. Nos. 72-717-C and 72-718-C.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John W. Burgess, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
Defendant appeals from conviction upon each of two indictments, tried together, charging him with two murders under ORS 163.115.
The defendant and both defense counsel filed a written stipulation in which it was admitted that the
defendant killed each of the victims. The defendant gave written notice before trial that he intended to present evidence of a mental disease or defect precluding him from conforming his conduct to the requirements of law (ORS 161.295-161.309)*fn1 and further that he intended to introduce evidence that at the time of the crimes he was under the influence of "extreme emotional disturbance" not the result of an intentional, knowing, reckless or criminally negligent act and for which there is a reasonable explanation. ORS 163.125.*fn2
Defendant asserts that the state offered no evidence to disprove that he was under "extreme emotional disturbance" and that therefore murder should not have been submitted to the jury. We test the evidence in the light most favorable to the state and
consider all of the evidence. State v. Shipman, 2 Or App 359, 468 P2d 921 (1970); State v. Gardner, 231 Or 193, 372 P2d 783 (1962).
The defendant produced evidence from medical witnesses in support of his first defense of mental disease or defect. The state countered with the testimony of Dr. Suckow with reference to the same defense. During Dr. Suckow's testimony the term ...