dissenting.
I am unable to agree with the result of the well-reasoned majority opinion by Mr. Justice McAdlistek. The defendant was found guilty by a jury under the facts and the statutory law and previous decisions① of this court existing at the time of the commission of the crime and the trial of the case.
The Oregon legislature, as a matter of policy, has adopted two statutes dealing with the problem of citizens carrying firearms. ORS 166.240 provides:
“(1) Any person who carries concealed about his person in any manner, any revolver, pistol, or other firearm, * * * shall be punished upon conviction by a fine of not less than $10 nor more than $200, or by imprisonment in the county jail not less than five days nor more than 100 days, or both.”
*460OES 166.270 provides:
“ any person who has been convicted of a felony against the person or property of another * * * who owns, or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person, * * * shall be punished upon conviction by imprisonment in the penitentiary for not more than five years.”
The statutes make a reasonable distinction. OES 166.240 pertains to any person carrying concealed firearms, and OES 166.270 prohibits a person convicted of a felony from owning or possessing a firearm capable of being concealed. The legislature clearly intended two separate and distinct crimes. Prosecution in the case before us involved OES 166.270 (convicted felon in possession of a firearm), and the state had to prove the additional element of the crime “that defendant was a convicted felon.”
The United States Supreme Court has not disapproved the “same evidence” test in separate trials arising out of separate charges. The “same evidence” test has not been considered in this context. However, in Blockburger v. United States, 284 US 299, 52 S Ct 180, 76 L Ed 306, 309 (1932), wherein there was a single trial involving separate charges on the “same evidence,” the court stated:
“Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Gavieres v. United States, 220 U. S. 338, 342, 55 L. ed. 489, 490, 31 S. Ct. 421, and authorities *461cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Com. 108 Mass. 433: ‘A single act may he an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ Compare Albrecht v. United States, 273 U. S. 1, 11, 12, 71 L. ed. 505, 510, 511, 47 S. Ct. 250, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.”
In Gore v. United States, 357 US 386, 78 S Ct 1280, 2 L Ed 2d 1405 (1958), the United States Supreme Court was “strongly urged to reconsider Blockburger,” but the court held, in 357 US at 388, “We adhere to the decision in Blockburger v. United States, * * *. The considerations advanced in support of the vigorous attack against it have left its justification undisturbed, nor have our later decisions generated counter currents.”
I do not believe the prosecution of the defendant under both of the aforementioned statutes offends the constitutional prohibition against double jeopardy. If the above statutes are to be changed or if a form of compulsory joinder statute in criminal cases is to be adopted, that is a matter within the province of the legislature. It should not be done by judicial decision.
I would affirm the decision of the Court of Appeals, which in turn affirmed the trial court.
State v. Weitzel, 157 Or 334, 69 P2d 958 (1937); State v. Smith, 101 Or 127, 199 P 194 (1921); State v. Nodine, 121 Or 567, 256 P 387 (1927). See also State v. McDonald, 231 Or 48, 52, 365 P2d 494 (1962).