concurring in part and dissenting in part.
I concur in affirming defendant’s conviction for promoting gambling. I dissent from that portion of the majority opinion that interprets ORS 167.117 (4) to hold that a free-play pinball machine can be subject to forfeiture as a gambling device.
The question of whether to prohibit free-play pinball machines was one of those relatively minor issues that consumed a major amount of the legislature’s time in 1971. The Criminal Law Revision Commission proposed that such machines be outlawed. As stated by the Commission:
“McKee v. Foster, 219 Or 322, 347 P2d 585 (1959), held that ‘lottery’ contemplates a prize tangible in nature and having a value in the market place, but does not include the ‘free-play’ feature of a replay pinball machine. The draft would overrule this case.” Commentary, Proposed Oregon Criminal Code, p 258 (1970).
*668The Commission explained that its proposal made free-play pinball machines illegal
“* * # because [of] the definition of * * * ‘gambling’ which * * * hinges on the possibility of receiving ‘something of value’ which, in turn, is defined * * * to include free plays * * Commentary, supra at 260.
Specifically, as proposed by the Commission, the definition of “something of value” included “a privilege of playing at a game or scheme without charge.” Proposed Oregon Criminal Code, supra at 256.
Representatives of the amusement industry and various county officials who claimed they were dependent on tax revenues from licensing pinball machines lobbied against the Commission’s proposal. Their pleas were well-received by the Senate Criminal Law and Procedure Committee. Although parliamentary maneuvering sometimes obscures the fact, as I read the Committee’s Minutes for March 23, 30, 31, and April 2, 1971, it is clear that the sentiment of the Committee was that free-play pinball machines should be legal.
The Committee gave effect to this feeling by first amending the definition of something of value, now stated in ORS 167.117(12) to eliminate “a privilege of playing at a game or scheme without charge.” Since the definition of gambling, now stated in ORS 167.117(3), hinges on the possibility of receiving something of value, this had the effect of legalizing free-play pinball machines.
A couple of days later the Committee adopted another amendment, critical to the disposition of the forfeiture issue in this case. As drafted by the Criminal Law Revision Commission, Proposed Oregon Criminal Code at 254, and adopted by the legislature, ORS 167.117(4), the first sentence of the definition of gambling device reads:
*669“ ‘Gambling device’ means any device, machine, paraphernalia or equipment 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.”
The Committee, by amendment, added the following, which now appears as the last sentence of ORS 167.117(4):
“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.”
Interpreting this statutory language, the majority concludes: (1) free-play amusement devices are not per se gambling devices subect to forfeiture, but (2) those machines which are mechanically free-play amusement devices but used as gambling devices are subject to forfeiture. 21 Or App at 667.
The flaw in this analysis is that it reads the last sentence of ORS 167.117(4) out of the statute. After free-play pinball machines had been legalized by way of the amendment to the definition of something of value, ORS 167.117(12), the first sentence of ORS 167.117(4) continued to define gambling devices as machines “used” to gamble. Thus, if a machine only awarded free games, it was fully legal; but if the machine was used to gamble, i.e., something of value changing hands, it was illegal to possess, ORS 167.147, and subject to forfeiture, ORS 167.162. Were the first sentence of ORS 167.117(4) the only relevant statutory language, I would agree with the majority’s analysis. But the legislature proceeded to add the critical last sentence to ORS 167.117(4), excluding free-play amusement devices from the definition of gambling devices. Given that the first sentence of ORS 167.117(4) provides that machines not used to gamble *670are not gambling devices, the last sentence of ORS 167.117(4) is rendered a meaningless nonsequitur unless it was intended to mean that free-play amusement devices are never gambling devices, regardless of whether they are abused by way of cash payoffs.
Of course, the act of abuse is punishable as promoting gambling under ORS 167.122. But the only way to give any effect to the last sentence of ORS 167.117(4) is to hold that the legislature intended to exclude free-play pinball machines from the.prohibition against possession, ORS 167.147, and the possibility of forfeiture, ORS 167.162, regardless of how they are used or abused.
In addition to giving effect to the entire statute, my interpretation is also supported by the policy consideration discussed in State v. Welch, 264 Or 388, 393, 505 P2d 910 (1973): in case of doubt, ambiguous penal statutes should be interpreted in favor of lenity. The same policy consideration should be applied to forfeiture statutes.
.Finally, in light of the extensive favorable consideration that free-play pinball machines received, I cannot agree with the majority’s suggestion that the legislature might have intended to include such machines within the definition of slot machines in ORS 167.117(10).
I would reverse the order of forfeiture.