dissenting.
Defendant was indicted for the illegal possession of a dangerous drug, “to-wit: methylpenidate [sic] hydrochloride.” Former ORS 475.100. He was convicted and sentenced to five years’ imprisonment. Defendant appeals asserting among other alleged errors the denial of his motion for judgment of acquittal, offering two propositions in support thereof.
One is that the evidence is insufficient to support the verdict since it nowhere establishes that he possessed the substance charged in the indictment or *225that the substance found on Ms person — Ritalin—was a dangerous drug.
It is admitted that all of the evidence in the case related to a tablet referred to throughout the trial only as “Ritalin.” The record is devoid of any evidence that relates Ritalin in any respect to the drug charged in the indictment. ORS 474.010, which defines as dangerous a series of drugs, identifies neither Ritalin nor the drug charged in the indictment. OAR 8-005 (1) declares methylphenidate hydrocMoride to be a dangerous drug, so designated pursuant to ORS 475.010 (1) by the Drug Advisory Council.
If it is contended that Ritalin is prohibited under that portion of OAR 8-005 (1) which prohibits “any salts, derivatives or compounds” of the drugs, including methylphenidate hydrocMoride, named therein, there is nothing in the record to support it. Nor is there any evidence that Ritalin is a “registered trademarked or copyrighted preparation or compound registered in the United States Patent Office containing” methylphenidate hydrocMoride.
Judicial notice is not judicial knowledge. He who bears the burden of establishing a fact of wMch a court may take judicial notice is not because of that relieved of the necessity of bringing that fact to the knowledge of the court. Quong Wing v. Kirkendall,① 228 US 59, 32 S Ct 192, 56 L Ed 350 (1912); Shapleigh v. Mier, 299 US 468, 57 S Ct 261, 81 L Ed 355 (1937); 113 ALR 258 (1938).
*226Furthermore, the court was not asked to and did not take judicial notice that there was any relationship between the drug charged and Eitalin, nor is the matter covered by OES 41.410. See: The Oregon Lawyer’s Trial Book, Judicial Notice §§ 2.1 and 2.2 (1967).
Concerning the two Eitalin tablets found on the defendant, the arresting officer who was the sole witness called by the state in its case-in-chief, testified only that:
“The Kool cigarette package and the two suspected Eitalin tablets were then taken to the crime laboratory where they were to be processed and analyzed.
“Q Did you bring those items with you today?
“A No, I did not. The laboratory technician is bringing them.
“Q All right. Thank you.”
The state, however, rested at the conclusion of that officer’s testimony. No one from the crime laboratory was ever called. No rebuttal testimony, and none offered by the defendant, at any time referred to the drug charged in the indictment or established any relationship between it and Eitalin. Since there was a total failure of proof of any relationship between Eitalin and “methylpenidate [sic] hydrochloride” or that the defendant at any time had any of the latter commodity in his possession, I conclude that the conviction should be set aside. Accordingly, I respectfully dissent.
There, speaking through Mr. Justice Holmes, the court said: “* * * [T]here are many things that courts would notice if brought before them that beforehand they do not know. It rests with counsel to take the proper steps, and if they deliberately omit them, we do not feel called upon to institute inquiries on our own account. * * *” 223 US at 64.