dissenting.
I would hold that the trial court erred in allowing defendants’ motion to dismiss. Therefore, I respectfully dissent.
Murder by torture is widely recognized as a particularly heinous form of murder, both in statutes that declare murder by torture to be murder in the first degree (e.g., Cal Penal Code § 189; NM Stat Ann § 30-2-1) and in statutes that make torture of the victim one of the “aggravating” or “special” circumstances justifying imposition of the death penalty. See, e.g., Cal Penal Code § 190.2(1)(18); Ga Code Ann § 27-2534.1(b)(7); Va Code § 19.2-264.2. Most murder by torture statutes do not include a definition of the word “torture.”1 The absence of a statutory definition has not resulted in those statutes being held unconstitutionally vague. Courts in those states have recognized their duty to attempt to save a statute, where possible, by interpreting it in such a way that would give it the required definiteness. For example, the Michigan Court of Appeals concluded that the word “torture,” when given a common dictionary definition, was sufficiently definite to avoid a vagueness challenge:
“Where a statutory term is not defined in the statute, it is to be given its ordinary meaning. An examination of the various dictionary definitions discloses that ‘torture’ refers to the intentional infliction of intense pain for various purposes such as sadistic pleasure, coercion, and punishment. We interpret the child torture statute as requiring a showing that *565the defendant intentionally inflicted extreme, intense, or severe pain or injury upon the victim. * * *
“We conclude that the term ‘torture’ does have a commonly understood meaning which gives a person of ordinary intelligence fair notice that his contemplated conduct is prohibited.” People v. Webb, 128 Mich App 721, 727, 341 NW2d 191 (1983). (Footnotes and citations omitted.)
In State v. Fahy, 201 Kan 366, 440 P2d 566 (1968), the Kansas Supreme Court concluded that the use of the word “torture” in that state’s child abuse statute did not render it unconstitutionally vague. The court concluded:
“The fact that the trial court sees fit to define the language used in a statute by governing case law or common dictionary meaning does not indicate indefiniteness. It is only required that the phrase used provides reasonably definite standards which one reading the statute can understand and contemplate. We hold that words like ‘beat,’ ‘abuse,’ ‘torture,’ ‘cruelty’ and ‘traumatic’ provide such standards.” 201 Kan at 370. (Citations omitted.)
Other courts have also supplied definitions for the word “torture,” whether in answer to a vagueness challenge or to explain why specific conduct does or does not fit within the definition of the word.2 See State v. Brock, 101 Ariz 168, 171, 416 P2d 601 (1966); People v. Steger, 16 Cal 3d 539, 546, 128 Cal Rptr 161, 546 P2d 665 (1976); Townsend v. People, 107 Colo 258, 265-66, 111 P2d 236 (1941); Justus v. State, 247 Ga 276, 279, 276 SE2d 242 (1981); Hance v. State, 245 Ga 856, 861, 268 SE2d 339 (1980); State v. Cross, 308 NW2d 25, 26 (Iowa 1981); State v. Sonnier, 402 So 2d 650, 659 (La 1981); State v. McKenzie, 608 P2d 428, 445 (Mont 1980); State v. Bentford, 39 NM 293, 296-97, 46 P2d 658 (1935); Commonwealth v. Pursell, 495 A2d 183, 196 (Pa 1985); State v. Williams, 690 SW2d 517, 529 (Tenn 1985).
Statutes may be saved by judicial construction. See *566State v. Graves, 299 Or 189, 197, 700 P2d 244 (1985); State v. Robertson, 293 Or 402, 411, 649 P2d 569 (1982). The word “torture” has a commonly understood meaning. Even the majority here lists several dictionary definitions. It then concludes that variations in those definitions leave several questions of legislative intent unanswered. Although dictionary definitions do vary somewhat, they also share several similarities. There is no reason why ORS 163.095(1) (e) cannot be saved by using a dictionary definition.3 In State v. Goodall, 90 Or 485, 487, 175 P2d 857 (1919), the Supreme Court stated:
“The indictment in the present case charges that the defendant cruelly tortured and tormented the animal by riding it when it had a deep, ulcerated sore on its back, and by supplying it with insufficient food. The Standard Dictionary defines torture as ‘the act or operation of torturing; the infliction of or subjection to extreme physical pain.’ The same authority defines torment thus: ‘To subject to excruciating bodily or mental suffering.’ ”
I believe that the legislature would be stunned to learn that this court has concluded in this case that the word “torture” is unconstitutionally vague.
In its opinion, the trial court noted: “The California legislature has defined [torture] as requiring ‘proof of infliction of extreme physical pain no matter how long its duration.’” However, the court failed to recognize that the definition in California Penal Code section 190.2(a) (18) is, at most, a statutory substitute for the definition of “torture” developed by case law in the specific context of determining when capital punishment is appropriate. See People v. Robertson, 33 Cal 3d 21, 51, 188 Cal Rptr 77, 655 P2d 279 (1982). The existence of that statutory definition is not authority for the proposition that some definition of “torture” is required in every statute which prescribes a specific penalty for murder by torture.
For an example of a definition supplied by a court, see State v. Brock, supra, 101 Ariz at 171:
“Murder is perpetrated by torture when the assailant intends to cause cruel suffering for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity. * * * There need not be an intent to cause death, but there must be a separate intent to cause pain and suffering for one of the enumerated purposes.”
There is authority for the proposition that broadly worded statutes authorizing capital punishment for “especially heinous,” “vile, horrible, or inhuman” conduct involving “torture” are unconstitutional, on the theory that they do not meaningfully narrow the field of persons subject to the death penalty. See Godfrey v. Georgia, 446 US 420, 100 S Ct 1759, 64 L Ed 2d 398 (1980); People v. Superior Court, 31 Cal 3d 797, 183 Cal Rptr 800, 647 P2d 76 (1982): but see State v. Sonnier, supra, 402 So 2d at 658-660 (La 1981); Jones v. Commonwealth, 228 Va 427, 446, 323 SE2d 554 (1984). However, that line of authority does not support an argument that the word “torture” is, itself, unconstitutionally vague. Neither does it support the trial court’s ruling in this case that all prosecutions under ORS 163.095(1) (e) are barred. Oregon law on vagueness is settled to the contrary. See, e.g., State v. Wojahn, 204 Or 84, 136-37, 282 P2d 675 (1955); State v. Timmons, 75 Or App 678, 681, 706 P2d 1018, rev den 300 Or 451 (1985); State v. Corpuz, 49 Or App 811, 818-19, 621 P2d 604 (1980); State v. Samter, 4 Or App 349, 352-53, 479 P2d 237 (1971).