Appeal from Circuit Court, Polk County. Darrell J. Williams, Judge. No. 20772.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, 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.
Thornton, Judge. Langtry, Presiding Judge, and Foley, Judge.
On July 31, 1972, in the Yamhill County Courthouse at McMinnville, defendant shot and killed his wife as they were waiting for a custody hearing to begin in the circuit court. Dyer also killed a female friend of his wife and fired two shots at a Yamhill deputy sheriff, who returned his fire and wounded him. At his trial Dyer relied on an insanity defense;
however, he was convicted by jury on two counts of murder and one of attempted murder.
Defendant appeals, alleging: (1) that it was error to change venue from Yamhill to Polk County because of the close proximity to McMinnville; (2) that certain lay witnesses should not have been allowed to express their opinions on Dyer's sanity as they were not shown to be intimate acquaintances; and (3) that it was error to deny defendant's motion for a mistrial on the ground that the prosecutor expounded an incorrect test of insanity in eliciting testimony from several witnesses as to defendant's sanity and in arguing the case to the jury.
Defendant's first assignment of error is without merit as defense counsel, who requested the change of venue, expressed no objection to having the trial moved to Polk County.
Defendant's second assignment of error is likewise without merit. ORS 41.900(10) permits intimate acquaintances to give their opinion respecting defendant's sanity. In this regard, "* * * it is within the discretion of the trial court to say when the witness has shown himself competent and qualified to express an opinion upon the subject * * *." State v. Hansen, 25 Or 391, 395, 35 P 976, 36 P 296 (1894); accord, State of Oregon v. Garver, 190 Or 291, 315, 225 P2d 771 (1950); State v. Hassing, 60 Or 81, 90, 118 P 195 (1911); see also, State v. Skerl, 250 Or 346, 442 P2d 610 (1968); State v. Van Dolah, 14 Or App 125, 512 P2d 1013 (1973).
The lay witnesses who expressed their opinion as to Dyer's sanity are sufficiently more intimate with defendant than the jailer who was permitted to express
an opinion in Hansen. The weight to be given to the testimony of the witnesses is for the jury to determine. Lassas v. McCarty, 47 Or 474, 482, 84 P 76 (1906); State v. Skerl, supra at 348.
We now consider Dyer's third assignment of error, relating to his insanity plea. ORS 161.295(1) was adopted by the 1971 legislature and is based on § 4.01(1) of the American Law Institute's Model Penal Code (1962). The new test of insanity contained in ORS 161.295(1) represents a substantial change from the prior test in Oregon.*fn1
"(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
"(2) As used in chapter 743, Oregon Laws 1971, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated ...