Appeal from Circuit Court, Multnomah County. James M. Burns, Judge. No. C-72-02-0358 Cr.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
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.
Schwab, Chief Judge, and Fort and Thornton, Judges.
Defendant was found guilty by jury verdict of two counts of murder. ORS 163.115 (1)(a). On appeal he contends the trial court erred in not instructing the jury on the elements of manslaughter as a lesser included offense. This contention is based on the premises that there was substantial evidence that defendant was intoxicated at the time the homicides were committed, and that intoxication can reduce what would otherwise be murder to manslaughter.
The state's evidence included references to defendant
and the two victims having consumed a quantity of alcohol over about a ten-hour period before 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 ...