# Brooks v. Bergholm

> Oregon Supreme Court · June 10, 1970 · 256 Or. 1

URL: https://www.frixlaw.com/law-library/cases/9791014

## Case

- **Full name:** BROOKS, Respondent, v. BERGHOLM, Appellant
- **Court:** Oregon Supreme Court
- **Decided:** June 10, 1970
- **Citations:** 256 Or. 1; 470 P.2d 154; 1970 Ore. LEXIS 444
- **Precedential status:** Published
- **Opinion:** Concurrence by Holman
- **Judges:** Perry, McAllister, Sloan, O'Connell, Goodwin, Denecke, Holman
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9791014

## Opinion text

HOLMAN, J.,
concurring.
The opinion of the majority holds that it would be error upon retrial for the trial judge to fail to give a requested instruction to the effect that evidence of previous threats made by a party to a physical altercation may be taken into consideration by the jury in determining whether the person making the threats was the aggressor. I believe it would be obvious to a juror of ordinary intelligence that a person who threatens another is apt to attempt to carry out the threat and is thus likely to be an aggressor. I, therefore, do not believe the failure to give such an instruction would be error.
Evidence is admitted because it is relevant to the issues in some particular manner. If it is the trial judge’s duty, upon request, to point out the relevance which caused each bit of evidence to be admitted, regardless of its obvious purpose, instructions are quickly going to become more voluminous. Each side will request an instruction telling the jury the purpose for which each bit of favorable evidence may be considered. If there were evidence that a party in an automobile accident was operating his vehicle with one *10 arm around Ms lady friend, the jury, upon request, would have to be told that this particular bit of evidence may be considered in deciding whether the party had proper control of his vehicle.
In most situations, the relevance of the evidence is so obvious that an instruction should not be given. In other situations, the reason for the admission of the evidence may be obscure and the evidence is likely to be considered for an irrelevant purpose. It would be error in such case to refuse an instruction. The issue upon which this case was properly reversed is an example of a situation in which it is error to fail to point out the relevance of the evidence. The wealth of the defendant was legally relevant to one kind of damage and not to the other. The average juror would not be able to make such a distinction without instruction. There is a third, marginal situation in which the trial judge must have some leeway or discretion and where it is not error to give or to fail to give the instruction.
It is my opinion that the relevance of the evidence is sufficiently obvious so that the request would do no more than to invoke the court’s discretion.
Denecke, J., joins in this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9791014. Public record. Not legal advice.