specially concurring.
The majority analysis is fallacious. There are three elements under ORS 167.132 of the crime of possession of gambling records. They are:
1) possession
2) of gambling records, as defined,
3) with knowledge of the (nature of) their contents.
There is no dispute regarding the first element, possession. The fallacy of the majority is simply that it confuses the latter two elements.
Defendant argues only that the statutory description of gambling records in ORS 167.132 is vague. The statutory description of the things not to be possessed is sufficiently definite to allow consistent judicial construction and jury application, and that is the test of the vagueness doctrine as stated in State v. Hodges, 254 Or 21, 457 P2d 491 (1969). The statute is therefore not vague and, in my opinion, no more need be said.
The majority purports to save the statute from death by vagueness by incorporating the knowledge requirement into the description of the contraband goods. Good sense makes such a constitutional rescue operation unnecessary because the description is sufficient without reference to knowledge. Furthermore, it is a non sequitur; I see no logical connection between the two elements. The knowledge requirement is a separate element from the contraband description. Knowledge or ignorance of a record’s contents by its possessor does not determine whether the record is a gambling record or not within the statutory description.
The distinction may be simply illustrated. If numbers slips, for example, are sent through the mails, the mail carrier would possess articles which are indisputably gambling records. He would not be guilty of the crime, however, not because numbers slips are not gambling records, but because he does not know their *482contents. His ignorance of their contents does not make the numbers slips legally immaculate; it merely means that the knowledge element of the statutory definition of the crime has not been satisfied and he is not culpable for that reason.
Conversely, knowledge of contents cannot convert a non-described article into contraband. This, too, is subject to simple illustration. If a bookmaker uses an ordinary telephone directory to call her regular customers, and her spouse, with Ml knowledge of the nature of the contents of the telephone directory, borrows it to make some social calls, his knowledge does not make it into a gambling record.
Simply stated, an item is either a gambling record under the statutory definition or it is not. Knowledge does not bring a non-described item within the description and ignorance does not exclude it. Knowledge is simply a second element of the crime. It does not affect an otherwise sufficient description and the majority errs in reasoning, that it does. I would hold that the statutory definition is sufficient and I see no need to complicate the law by confusing it with the separate scienter requirement.