manslaughter instruction in Oregon

1991The mental state of a criminal defendant is a uniquely factual question and, whatever logic the [State v. Palaia, 289 Or 463 , 614 P2d 1120 (1980),]-Washington rule might have in other contexts, I strongly question whether the rule can properly be applied to refuse a requested lesser included offense instruction when the dispute over the degree of the defendant’s guilt turns on the mental state with which he acted.’ (Emphasis in original.)” 303 Or at 349-50 . *524 Defendant reasons: “In the instant case, the same rationale applies.

1991The mental state of a criminal defendant is a uniquely factual question and, whatever logic the [State v. Palaia, 289 Or 463 , 614 P2d 1120 (1980),]-Washington rule might have in other contexts, I strongly question whether the rule can properly be applied to refuse a requested lesser included offense instruction when the dispute over the degree of the defendant’s guilt turns on the mental state with which he acted.’ (Emphasis in original.)” 303 Or at 349-50 . *524 Defendant reasons: “In the instant case, the same rationale applies.

1991The mental state of a criminal defendant is a uniquely factual question and, whatever logic the [State v. Palaia, 289 Or 463 , 614 P2d 1120 (1980),]-Washington rule might have in other contexts, I strongly question whether the rule can properly be applied to refuse a requested lesser included offense instruction when the dispute over the degree of the defendant’s guilt turns on the mental state with which he acted.’ (Emphasis in original.)” 303 Or at 349-50 . *524 Defendant reasons: “In the instant case, the same rationale applies.

1987The mental state of a criminal defendant is a uniquely factual question and, whatever logic the Palaia-Washington rule might have in other contexts, I strongly question whether the rule can properly be applied to refuse a *350 requested lesser included offense instruction when the dispute over the degree of the defendant’s guilt turns on the mental state with which he acted.” (Emphasis in original.) 75 Or App at 731-32 .

1982App. 153, 161-164 , 458 P.2d 687 (1969); and State v. Miller, 6 Or.

1982Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant.” The state relies upon two decision's of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or 24, 31-32 , 79 P 53 (1905); State v. Hood, 225 Or 40, 48 , 356 P2d 1100 (I960); State v. Smith, 1 Or App 153, 161-164 , 458 P2d 687 (1969); and State v. Miller, 6 Or App 366, 371-372 , 487 Pd 1387 (1971).

1982App. 153, 161-164 , 458 P.2d 687 (1969); and State v. Miller, 6 Or.

1982Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant.” The state relies upon two decision's of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or 24, 31-32 , 79 P 53 (1905); State v. Hood, 225 Or 40, 48 , 356 P2d 1100 (I960); State v. Smith, 1 Or App 153, 161-164 , 458 P2d 687 (1969); and State v. Miller, 6 Or App 366, 371-372 , 487 Pd 1387 (1971).

1982Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant.” The state relies upon two decision's of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or 24, 31-32 , 79 P 53 (1905); State v. Hood, 225 Or 40, 48 , 356 P2d 1100 (I960); State v. Smith, 1 Or App 153, 161-164 , 458 P2d 687 (1969); and State v. Miller, 6 Or App 366, 371-372 , 487 Pd 1387 (1971).

1982Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant.” The state relies upon two decision's of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or 24, 31-32 , 79 P 53 (1905); State v. Hood, 225 Or 40, 48 , 356 P2d 1100 (I960); State v. Smith, 1 Or App 153, 161-164 , 458 P2d 687 (1969); and State v. Miller, 6 Or App 366, 371-372 , 487 Pd 1387 (1971).

1982Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant.” The state relies upon two decision's of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or 24, 31-32 , 79 P 53 (1905); State v. Hood, 225 Or 40, 48 , 356 P2d 1100 (I960); State v. Smith, 1 Or App 153, 161-164 , 458 P2d 687 (1969); and State v. Miller, 6 Or App 366, 371-372 , 487 Pd 1387 (1971).

1982Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant.” The state relies upon two decision's of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or 24, 31-32 , 79 P 53 (1905); State v. Hood, 225 Or 40, 48 , 356 P2d 1100 (I960); State v. Smith, 1 Or App 153, 161-164 , 458 P2d 687 (1969); and State v. Miller, 6 Or App 366, 371-372 , 487 Pd 1387 (1971).

1982Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant." The state relies upon two decisions of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or. 24, 31-32 , 79 P. 53 (1905); State v. Hood, 225 Or. 40, 48 , 356 P.2d 1100 (1960); State v. Smith, 1 Or.

1982Accordingly, the giving of the manslaughter instruction, even if error, inured to the benefit of the defendant.” The state relies upon two decision's of this court and two decisions of the Court of Appeals: State v. Gray, 46 Or 24, 31-32 , 79 P 53 (1905); State v. Hood, 225 Or 40, 48 , 356 P2d 1100 (I960); State v. Smith, 1 Or App 153, 161-164 , 458 P2d 687 (1969); and State v. Miller, 6 Or App 366, 371-372 , 487 Pd 1387 (1971).

1974State v. Trent, 122 Or. 444, 454 , 252 P. 975 , 259 P. 893 (1927). [3] The state urges that under common law the burden of proof to establish the manslaughter exception to murder was on the defendant, and that we should hold the defendant must establish this exception by a preponderance of the evidence.

1974State v. Trent, 122 Or. 444, 454 , 252 P. 975 , 259 P. 893 (1927). [3] The state urges that under common law the burden of proof to establish the manslaughter exception to murder was on the defendant, and that we should hold the defendant must establish this exception by a preponderance of the evidence.

1973Even proceeding on the assumption that intoxication may be a partial defense to murder, in this case, for *329 several reasons, the trial court did not commit error by not giving a manslaughter instruction. (1) Defense counsel did not request a manslaughter instruction. “* * * Consideration of orderly procedure and of fairness to the state and the trial judge suggest that the matter be brought to the attention of the judge and of opposing counsel before the commencement of the charge * * State of Oregon v. Nodine, 198 Or 679, 687 , 259 P2d 1056 (1953).

1973Even proceeding on the assumption that intoxication may be a partial defense to murder, in this case, for *329 several reasons, the trial court did not commit error by not giving a manslaughter instruction. (1) Defense counsel did not request a manslaughter instruction. “* * * Consideration of orderly procedure and of fairness to the state and the trial judge suggest that the matter be brought to the attention of the judge and of opposing counsel before the commencement of the charge * * State of Oregon v. Nodine, 198 Or 679, 687 , 259 P2d 1056 (1953).

1924No objection was made and no exception reserved to the manslaughter instruction until a verdict was received and filed in court, which convicted the defendant of manslaughter and, according to defendant’s contention, acquitted him of murder: State v. Steeves, 29 *283 Or. 85 ( 43 Pac. 947 ).