dissenting.
The majority holds, on the authority of State v. Larsen, 44 Or App 643, 606 P2d 1159, rev den 289 Or 373 (1980), that defendant cannot be guilty of possession of a weapon because ORS 166.275 does not apply when the convicted person is outside the penal institution. I cannot agree.
In Kneefe v. Sullivan, 2 Or App 152, 465 P2d 741, rev den (1970), we held that a work release enrollee who escaped while he was in physical custody in Multnomah *430County in connection with work release was still in the constructive custody of the Oregon State Correctional Institution in Marion County and therefore could be tried on the escape charge either in Multnomah County or Marion County.
Similarly, in State v. Wolfe, 10 Or App 118, 121, 497 P2d 1222, rev den (1972), we held that a defendant who had been transferred from the correctional institution to work release for the purpose of attending the University of Oregon and who left the university without permission and was later apprehended in North Dakota was guilty of escape from the institution since he was technically an inmate of the institution at the time he escaped while on work release.
Here, defendant was committed to the Oregon State Prison and was under the jurisdiction of that institution at the time he was found in possession of a sawed-off shotgun. Defendant was both committed to a penal institution and under the jurisdiction of that penal institution when he unlawfully possessed the weapon. State v. Wolfe, supra; Kneefe v. Sullivan, supra. The conclusion is inescapable that the trial court did not err in denying defendant’s motion for judgment of acquittal. Although State v. Larsen, supra, is distinguishable on the facts, I believe it was incorrectly decided for the reasons outlined above. I would therefore overrule Larsen and affirm the trial court here.
For the foregoing reasons, I respectfully dissent.