dissenting.
I agree with the majority that defendant’s first assignment cannot be sustained. I disagree, however, with the second conclusion of the opinion, namely, that the provisions of ORS 137.540 do not authorize the trial judge to impose the challenged condition of probation.
In my view this conclusion is in error on two counts:
First, it appears to me that the majority is ignoring entirely the broad grant of authority contained in the introductory provision of ORS 137.540, which begins by stating:
“The court shall determine * * * the conditions of probation, which may include, as well as others, that the probationer shall * * *”
and then proceeds to list 12 conditions. It is obvious from the quoted language that the enumeration of the 12 conditions in ORS 137.540 was not intended to be exclusive. Notwithstanding this clear expression of *379legislative intent to give the trial judge broad discretion in imposing conditions to probation, see, State v. Allen, infra, the majority proceeds to interpret condition 10 (ORS 137.540(10)) as the limit of the court’s power in imposing restitution as a condition to probation. This, I think, is erroneous.
Additionally, the majority has interpreted condition 10 much too narrowly by giving a very restrictive, and again erroneous, construction to the term “aggrieved person.” In reaching this result the opinion relies upon a series of federal court decisions which strictly construe the federal probation statute, which is a more narrowly drawn statute than ours, plus a New York decision.
Second, I believe that the restrictive rule announced by the majority is contrary to the trend of appellate decisions in other states. While as previously indicated some of the federal courts have taken a very restrictive view of the probationary authority of their trial courts, this is not the trend elsewhere. Some of these cases are abstracted in the margin.①
*380I believe that we should apply the liberal rule as declared in our statute and allow the trial judge a broad range of discretion here as was done by our Supreme Court in State v. Ludwig, 218 Or 483, 344 P2d 764 (1959), and as we did in State v. Foltz, 14 Or App 582, 513 P2d 1208, Sup Ct review denied (1973). In Foltz, defendant Foltz was convicted of attempting to obtain $120 unlawfully from the state welfare department. The circuit court, as a condition of probation, required defendant to make restitution to the welfare department in the amount of $2,600. The defendant attacked this condition on a variety of grounds including the contention that the above condition was beyond the court’s authority. All of defendant’s contentions. were rejected by this court on appeal.
Summarizing, so long as the conditions imposed by the court come within the terms of our statutes and violate no constitutional provisions, the same should not be subject.to challenge. After all the defendant is not required to accept probation if he has objections to the conditions fixed by the court. As this court observed in State v. Allen, 12 Or App 455, 457, 506 P2d 528, Sup Ct review denied (1973):
a* * * jn assessing the reasonableness of pro*381bation conditions a reviewing court will bear in mind the purposes sought to be served by probation and will recognize the wide discretion of the trial court in such matters * *
I would affirm.
In State v. Gunderson, 74 Wash2d 226, 444 P2d 156 (1968), where the defendant had been convicted of negligent homicide, the Supreme Court of Washington approved a requirement that the defendant pay $7,500 to the parents of a deceased child who was killed as the result of being struck by defendant’s automobile.
Similarly, in Shenah v. Henderson, 106 Ariz 399, 476 P2d 854 (1970), the Supreme Court of Arizona approved a condition that the defendant pay $2,500 to the parents of a deceased girl killed in a car accident.
In People v. Alexander, 182 Cal App2d 281, 6 Cal Rptr 153 (1960), the court gave its approval to a condition that defendant who was convicted of arson pay $139,000, which represented the sums paid by the various fire insurance companies. The record showed that the defendant was a wealthy man.
In People v. Stacy, 64 Ill App2d 157, 212 NE2d 286 (1965), where defendant was convicted of attempted murder, the Illinois court approved a $100 a month payment where the victim had lost a leg, even though a civil action for damages was pending against the defendant.
*380In People v. McClean, 130 Cal App2d 439, 279 P2d 87 (1955), the condition was that the defendants give “value received” to the persons defrauded. This condition was subsequently modified to require the defendants to pay off civil judgments totaling $56,-700 to the persons defrauded. This condition was approved by the appellate court.
In Taylor v. State, 419 SW2d 647 (Tex Cr App 1967), the Texas court approved an order of restitution to a third party of $1,000 at a rate of $10 a week after a DUIL conviction.
In Comm’r of Motor Vehicles v. Lee, 254 Md 279, 255 A2d 44 (1969), the Maryland court said that payment of money by way of restitution may be imposed without a verdict as to the amount.
Finally, in State v. May, 93 Idaho 343, 461 P2d 126 (1969), the Idaho Supreme Court approved a condition involving conviction of forgery. The condition required the payment of $4,000 plus interest to the complaining witness.