specially concurring.
Whether Dr. Simpson’s excluded testimony was, as the district attorney claimed, “irrelevant,” and whether defendant’s requested instruction was proper in form raises the following question: To what extent does evidence of intoxication tend to prove the existence of a “mental disease or defect” within the meaning of ORS 161.295(1), the statute defining the insanity defense. In discussing this question the majority states that there are significant distinctions between the *477short-term and long-term effects of intoxication, and between voluntary and involuntary intoxication.① I am unable to join that portion of the majority opinion.
As I read State v. Smith, 260 Or 349, 490 P2d 1262 (1971), and the cases cited therein, it is clear that intoxication can in at least some situations be relevant to an insanity defense.② Exactly when intoxication is relevant is less clear. Smith states at one point that “voluntary intoxication is * * * a defense * * * if it produces insanity.” 260 Or at 353, n 2. At another point Smith refers to “a distinction between the effects of temporary intoxication and the long-term effects of extended or gross intoxication.” 260 Or at 352. There is yet another reference to “excessive and long-continued use of intoxicants.” 260 Or at 352-53. The analysis in Smith concludes, “insanity caused by in*478toxication [is] the same as insanity brought about by any other cause.” 260 Or at 353.
Parts of Smith seem to indicate that any intoxication, regardless of whether voluntary/involuntary or long-term/short-term, can be evidence of insanity, or more precisely, mental disease or defect. Other parts of Smith seem to indicate, as the majority states, that there may be significant distinctions between kinds and durations of intoxication.
In light of this uncertainty, I favor a narrow holding in this case. I would only hold that the evidence in this case—that defendant had an organic brain syndrome, that this impaired his ability to control his consumption of alcohol, and that defendant was intoxicated at the time of the homicide—was such that defendant’s intoxication was relevant to his insanity defense under Smith.③ It follows that Dr. Simpson’s testimony was admissible, and that the trial court should have instructed the jury that intoxication could be considered in determining whether defendant had a mental disease or defect at the time of the homicide.
I think it better to leave for another day the broader questions of if and when different kinds or durations of intoxication would produce a different result under Smith.
The majority does not define “voluntary” or “involuntary” intoxication. ORS 161.085(2) defines a “voluntary act” as “a bodily movement performed consciously.” Obviously the district attorney’s cross-examination of Dr. Parvaresh, quoted by the majority, was based in part on this statute. However, I doubt that this statutory definition was intended to apply to intoxication. If it does apply, involuntary intoxication is probably quite rare. But in any event, if we are going to hold that there are significant distinctions between voluntary and involuntary intoxication, it seems to me that some effort should be made to define these concepts.
At the time State v. Smith, 260 Or 349, 490 P2d 1262 (1971), was decided, Oregon followed the “M’Naghten” insanity test. This has since been replaced by the Model Penal Code test enacted as ORS 161.295 in 1973. One component of the new test is that the defendant had a “mental disease or defect.” There is no statutory definition of this phrase, and the Criminal Law Revision Commission intended that it be subject to case law definition and development. See, Proposed Oregon Criminal Code (Prelim. Draft No. 4, 1968), Commentary at p 3, cited and discussed in Comment, 52 Or L Rev 285, 288-89 (1973). Accordingly, I assume that Oregon Supreme Court decisions on what can produce insanity, such as Smith, are controlling in this court on what can produce mental disease or defect unless and until the Supreme Court chooses to reconsider the matter.
It is difficult to appreciate the timing of the district attorney’s objection that evidence of intoxication was “irrelevant” to defendant’s insanity defense. During Dr. Parvaresh’s testimony the district attorney not only failed to object to testimony about intoxication, but also questioned at length on this subject during cross-examination. Having actively participated in opening this door, it seems it was a little late to try to close it when Dr. Simpson was later called to the stand and asked substantially the same questions Dr. Parvaresh had previously answered without objection.