dissenting.
I understand the majority to hold:
1. that possession of a firearm is a material element of the crime defined in ORS 166.270(1) and that a culpable mental state is required;
2. that the definition of "firearm” appearing in ORS 164.055 also applies to ORS 166.270(1); and
3. that as defined a "firearm” includes guns which are incapable of being fired.
I concur with the first two propositions. Under the state’s argument, this alone would require reversal because the state concedes that the gun had to be operable, but argues that no culpable mental state is required.
The majority states that a firearm is any object "design[ed] as a gun and * * * [capable] for use as a weapon,” i.e. capable for use "to gain an advantage.” 34 Or App at 285. The majority emphasizes that the pre-World War II .32 caliber revolver at issue here has the appearance of a gun, that thus can be used as a weapon, even if inoperative. I agree, and the same could be said of many toy guns which are designed neither as a weapon, nor to expel a projectile by the use of black or smokeless powder. Under the majority rule, we would also have to include as "firearms” an antique gun1 or a gun with a 90 degree bend in its barrel. Although the latter guns may not have the appearance of operability as a firearm, they nevertheless could be used as clubs and thus as weapons. The *287question arises: Why did not the legislature make it illegal for an ex-convict to possess anything "that can be used offensively or defensively to gain an advantage?” 34 Or App at 285.
ORS 164.055 is ambiguously worded. I would construe the ambiguous language to mean that a firearm is a weapon designed to and capable of expelling a projectile by the action of black or smokeless powder. The interpretation adopted by the majority imposes strict felony liability on a broad range of non-culpable conduct. The majority rationalizes strict liability on the grounds that "[a]ny other conclusion would make a sound public policy unnecessarily hard to enforce * * 34 Or App at 285-86. Such rationalization was rejected by the legislature when it enacted the 1971 Criminal Code and particularly those provisions relating to culpability, ORS 161.085 to ORS 161.125. The official Commentary to the Code states:
"* * * perhaps the single most basic part of the Code is the culpability of part of it. * * *
"The Commission follows the Model Penal Code in expressing a policy adverse to use of 'strict liability’ concepts in criminal law, whenever the offense carries a possibility of sentence of imprisonment.
"This position relates not only to offenses defined by the criminal code itself, but covers the entire body of state law, so far as penal sanctions are involved. * * *” Proposed Oregon Criminal Code 10-11, Commentary, § 11 (1970).
I respectfully dissent.
Schwab, Chief Judge, and Gillette and Roberts, Judges, join in this dissent.ORS 166.460 provides:
"ORS 166.230, 166.250 to 166.270, 166.280, 166.290, 166.410 to 166.450, and 166.470 do not apply to antique pistols or revolvers incapable of use as such.” (Emphasis supplied.)