Appeal from Circuit Court, Klamath County. Donald A. W. Piper, Judge. No. 72-87-C.
Del Parks, Klamath Falls, argued the cause and filed the brief for appellant.
John W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John H. Clough, Assistant Attorney General, Salem.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
Defendant appeals from conviction of criminally negligent homicide, ORS 163.145, a lesser included offense of manslaughter, ORS 163.125, which was charged in the indictment.
The homicide occurred at a parking lot in Klamath Falls shortly before midnight on June 15, 1972. The deceased and two young ladies were sitting in a parked automobile, the ladies in the front seat and deceased in the rear seat, and a witness was crouched at a front window talking with the car's occupants
when the defendant drove up in another vehicle, got out of it and approached the vehicle in which deceased was sitting. Deceased had in his possession a loaded handgun which he had been displaying. Defendant was a friend of the deceased and, as he approached, the deceased apparently pointed the gun at defendant, which caused some interchange of remarks. As defendant conversed with the occupants of the car the gun was further displayed by deceased, which resulted in defendant's asking for it and deceased's handing it to him. Immediately following this, the gun was discharged, striking deceased in the chest, resulting in his almost immediate death. Defendant, deceased and the two women had all had some beer to drink during the evening but evidence of extent of intoxication was meager.
Defendant alleges error on trial (1) in allowing the prosecution to present evidence of a prior written statement of a prosecution witness during redirect examination after the witness had been impeached during cross-examination by other of her pretrial statements, and (2) in allowing the prosecution to argue concerning whether the gun was shot from inside or outside the car in which deceased was sitting, in view of a stipulation which had been made by counsel. In this respect the defense also argues that the court improperly instructed the jury as to what weight as evidence it should afford the stipulation.
(1). The woman who was sitting on the passenger side of the front seat of the vehicle had testified concerning events leading up to the shooting. She testified that, while she did not see the gun as it went off, the explosion occurred two or three inches from her head. She also testified extensively about the amount
of time involved and things that were said before the shot was fired. In cross-examination she was interrogated concerning three statements which she made, two on June 16 and one on June 20, the details of which were sharply inconsistent with her present testimony. On redirect examination the prosecution produced a statement, which was consistent with her trial testimony, made on September 26 to the district attorney. The court allowed this evidence to be received over the defendant's objections. She testified the latter statement had been made when she voluntarily went to the district attorney for the purpose of making it. It had been developed in the cross-examination of the witness that she was emotionally upset, to the extent of having contemplated taking her own life, during the days following the homicide. The witness testified, in summary, that she could not think of the details of what had happened during that time, but that she had been better able to recollect afterward.
Defendant relies upon cases such as The People v. DePoy, 40 Ill 2d 433, 240 NE2d 616 (1968), which holds that, when a witness is impeached in cross-examination with contradictory statements made before trial, admission in redirect examination of evidence of other statements consistent with his testimony is not competent. Apparently a variety of views can be found in various jurisdictions on this ...