dissenting.
I dissent. An amusement machine which, though designed to pay off in free games, is used by its possessor to pay cash to the player for games won is a “gambling device,” as defined in ORS 167.117(5).
The term “gambling device” is defined as “* * * any * * * machine that is used or usable in the playing phases of unlawful gambling, whether it consists of gambling between persons or gambling by a person involving the playing of a machine. * * *. Amusement devices which do not return to the operator or player thereof anything but free additional games or plays shall not be considered to be gambling devices.” I read the statute to mean that an amusement device that returns to the operator or player something other than free additional games is a gambling device. The mere fact that the machine does not itself cough up nickles, dimes, quarters or dollars to a winning player does not mean that the machine is not a gambling device. If the machine’s possessor coughs up the money to the winner, the machine is a gambling device for the same reasons that cards, dice or some slot machines which, although they do not themselves discharge winnings in cash, are gambling devices. Here, there is ample evidence that the device, with the assistance of the defendant, returned something more than free additional games.
If there is any doubt, it is erased by examining the legislative history. In 1959, this court held that, under the then existing gambling law, free play pinball machines were not gambling devices. McKee v. Foster, 219 Or 322, 347 P2d 585 (1959). In 1970, the Criminal Law Revision Commission proposed the enactment of a Criminal Code, provisions of which would overrule McKee v. Foster, supra. Section 263 of the proposed Criminal Code defined the term “something of value” as follows:
“ ‘Something of value’ means any money or property, any token, object or article exchangeable for money or property, or any form of credit or promise directly or *668indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service, entertainment or a privilege of playing at a game or scheme without charge.”
“Gambling device” was defined as follows:
“ ‘Gambling device’ means any device, machine, paraphernalia or equipment that is used or usable in the playing phases of gambling, whether it consists of gambling between persons or gambling by a person involving the playing of a machine. Lottery tickets, policy slips and other items used in the playing phases of lottery and policy schemes are not gambling devices within this definition.”
Donald Paillette, Project Director of the Commission, at a meeting of Subcommittee No. 2 on February 9, 1970, advised the subcommittee that the definition of “something of value” was intended to overrule McKee v. Foster. Minutes of a meeting of the Commission on April 3, 1970, contain this statement:
“Mr. Paillette advised that McKee v. Foster, 219 Or 322, 347 P2d 585 (1959), held that free play pinball machines were not prohibited. The intent of the draft, however, was to prohibit free play pinball machines and other free play devices. A pinball machine not having a free play mechanism would not be illegal. If a pinball machine, for example, required the player to insert a nickel in order to play it and all he received was the fun and amusement of playing the machine, it would not be prohibited by the draft provisions. If, however, he received a free game by compiling a high score, the device would be illegal.” Minutes, Criminal Law Revision Commission, April 3, 1970, at 27-28.
When the matter came before the Senate Criminal Law & Procedure Committee on March 30, 1971, it was apparent that the amusement machine industry was concerned that all free play pinball machines would be forbidden, and amendments were proposed which were thought to obviate the problem and allow free play pinball machines to exist if no cash payoffs were made. The amendment was to delete that portion of the definition of “something of value” following the word “therein.” Senator Fadeley was unsure whether this single amendment would achieve the desired result — to permit free play pinball machines if no cash payoffs were received — and suggested adding to the *669bill a clause which is now the last sentence of the definition of “gambling device,” ORS 167.117(5). Richard Barton, Multnomah County Deputy District Attorney, expressed the opinion that no change was necessary, that with the changed definition of “something of value,” free play machines would lawfully exist. Minutes, Senate Criminal Laws & Procedure Committee, March 30, 1971, at 1-2.
Apparently Senator Fadeley and others were unconvinced, for three days later, on April 2, 1971, he proposed an amendment to the definition of “gambling device” to add what is now the last sentence of ORS 167.117(5), to make it clear “that the operation of ‘free play’ games or plays is not considered to be a gambling offense” (emphasis added). Senator Yturri stated that he thought that the amendments to the “something of value” definition adopted three days earlier had “taken care of’ the problem. There being some doubt whether the previous amendments to the “something of value” definition accomplished the desired goal, it was unanimously agreed to make the changes proposed by Senator Fadeley. Minutes, Senate Criminal Law and Procedure Committee, April 2, 1971, at 2-3. In order to make it permissible to operate free play machines for amusement, amendments were made to both the definition of “gambling device” and the definition of “something of value.”
No one expressed any disagreement with one of the overall goals of the legislation — to make unlawful the operation of pinball machine payoffs, and no one suggested that this goal could still not be achieved under the statute as amended. The majority’s construction of the last clause of ORS 167.117(5) is over literal and is contradicted by the legislative history. Contrary to the conclusion of the majority that the amendment to the definition of “gambling device” was intended to exclude all free play machines from the definition of “gambling device,” the perceived need to make the amendment was because of uncertainty whether the amendment to “something of value” would achieve the desired goal — to permit free play pinball machines to be lawfully operated if there were no payoffs — but to nonetheless permit the prosecution of persons who operated machines which returned to the player anything other than “free additional games or plays.”