dissenting.
I would hold that the trial court could raise the issue of defendant’s total lack of responsibility sua sponte. Therefore, I dissent.
Defendant was indicted for burglary in the first degree. After waiving a jury trial, he was tried to the court which found that, if he was responsible at the time of his act, he was guilty as charged beyond a reasonable doubt. The court *346concluded, however, that, at the time he committed the act, he was not responsible by reason of mental disease or defect. ORS 161.095. Judgment was entered accordingly.
There is evidence in the record, admitted without objection, that supports the trial court’s conclusion that defendant was not responsible at the time of his act. Indeed, defendant does not dispute that conclusion. Nevertheless, the majority holds that the court erred in considering evidence of defendant’s total lack of responsibility, because he did not affirmatively raise that defense. As a matter of statutory interpretion and as a matter of common sense, the majority is wrong.
The majority result is not compelled by the statutes it cites.1 The notice requirement of ORS 161.309 does not limit the state’s introduction of evidence, only the defendant’s. ORS 161.055(3) provides only that the state is not required to negate the defense unless it is raised by the defendant. Fairly construed, neither statute denies the trial court the right to raise the defense of total lack of responsibility sua sponte. Moreover, ORS 161.300 allows the admission of evidence that a defendant suffers from a mental disease or defect whenever that evidence is relevant to the issue of criminal intent. Here, that evidence is relevant because, if defendant was not responsible, he is legally blameless.
Although lacking express statutory authorization, the trial court’s imposition of the defense of total lack of responsibility is consistent with both the statutes governing mental disease or defect and the stated purposes of the criminal code. When criminal statutes are not specific, we look to the general purposes of the criminal code. The legislature has directed that the criminal code “shall be construed according to the fair import of its terms, to promote justice and to effect the purposes stated in subsection (1) of [ORS 161.025],” ORS 161.025(2). Among the general purposes enumerated in ORS 161.025(1) is:
“(d) To define the act or omission and the accompanying *347mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault.” (Emphasis supplied.)
A defendant who is not responsible at the time of the commission of an offense is legally blameless. It would be inconsistent with the legislative purpose to allow the conviction of that person for even a lesser included crime, as defendant’s counsel suggested to the trial court. I cannot comprehend how defense counsel, knowing that his client was not responsible at the time of his act, in good conscience could suggest to the trial court that his client could be convicted of any crime.
ABA Standards, The Functions of the Trial Judge § 1.1(a) (1972), states:
“The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.”
ABA Standards, The Prosecution Function § 1.1(c) (1971), states:
“The duty of the prosecutor is to seek justice, not merely to convict.”
In view of those admonitions, I fail to understand how the judge or the prosecutor could have acquiesced in the conviction of defendant for criminal trespass.
The issue was addressed in Whalem v. US, 346 F2d 812 (DC Cir), cert den 382 US 862 (1965). There, the court held that, when the facts indicate that the defendant may not have been responsible for his acts, he has no absolute right to prevent the injection of the sanity issue into the case:
“* * * One of the major foundations for the structure of the criminal law is the concept of responsibility, and the law is clear that one whose acts would otherwise be criminal has committed no crime at all if because of incapacity due to age or mental condition he is not responsible for those acts. If he *348does not know what he is doing or cannot control his conduct or his acts are the product of a mental disease or defect, he is morally blameless and not criminally responsible. The judgment of society and the law in this respect is tested in any given case by an inquiry into the sanity of the accused. In other words, the legal definition of insanity in a criminal case is a codification of the moral judgment of society as respects a man’s criminal responsibility; and if a man is insane in the eyes of the law, he is blameless in the eyes of society and is not subject to punishment in the criminal courts.
“In the courtroom confrontations between the individual and society the trial judge must uphold this structural foundation by refusing to allow the conviction of an obviously mentally irresponsible defendant, and when there is sufficient question as to a defendant’s mental responsibility at the time of the crime, that issue must become part of the case. Just as the judge must insist that the corpus delicti be proved before a defendant who has confessed may be convicted, so too must the judge forestall the conviction of one who in the eyes of the law is not mentally responsible for his otherwise criminal acts. We believe then that, in the pursuit of justice, a trial judge must have the discretion to impose an unwanted defense on a defendant and the consequent additional burden of proof on the Government prosecutor.” 346 F2d at 818.
In State v. Pautz, 217 NW2d 190 (Minn 1974), the Minnesota Supreme Court held that a trial judge has an obligation to consider defenses not raised by a defendant in order to facilitate the fair administration of criminal justice. There, the trial court raised the issue of sanity sua sponte. The Supreme Court stated:
“* * * Defendant challenges the right of the trial judge to raise on his own initiative a defense defendant had not affirmatively pursued. The trial judge has a function and a role in the fair administration of justice in our criminal law system. The trial judge in this case most admirably sought to fulfill his duties and obligations in this system. He raised a matter which could significantly promote a just determination of the trial. We affirm the actions of the trial judge in raising this issue.” 217 NW 2d at 192. (Footnote omitted.)
However, because there had been insufficient evidence presented on the sanity issue, the case was remanded for a new trial.2
*349In Walker v. State, 21 Md App 666, 321 A2d 170 (1974), the defendant attempted to withdraw his insanity plea after trial. The Maryland appellate court held that the trial court acted properly in refusing to permit him to so do. As to the trial court’s authority, the court held:
«* * * jn sum> it is discretionary. It may be that after an accused has entered a plea of insanity as provided by statute the medical reports will not support the plea and trial strategy will require the withdrawal of the plea. Where, as here, however, the court has before it uncontradicted, competent evidence that the accused was insane at the time of the commission of the offenses, it would be a manifest injustice to allow the withdrawal of a plea of insanity in the face of such evidence.” 321 A2d at 174.
In State v. Fernald, 248 A2d 754, 760 (Maine 1968), the Maine Supreme Court held that the trial court did not abuse its discretion in denying a murder defendant’s motion to withdraw his defense of not guilty by reason of insanity where such a withdrawal could result in the conviction of a defendant whose mental condition would absolve him of any criminal responsibility.
Under the majority opinion, and if the court ultimately finds defendant guilty of criminal trespass, a blameless person will be convicted of a crime and, perhaps, sentenced to prison.3 I find that unconscionable. If it is legally correct, it is morally wrong. If defendant was not responsible at the time of his act, he is blameless.4
Defendant has committed a seriously anti-social act. Society has a right to be protected from such acts. For that reason, the trial court properly placed defendant under the *350jurisdiction of the Psychiatric Security Review Board. Oregon’s statutory scheme for the care of persons found guilty except for insanity, ORS 161.295 et seq, has been praised as a model for other jurisdictions. Our legislature’s concern for the treatment of persons found guilty except for insanity, and the public’s need for and right to expect protection from such persons, are evidenced by the legislature’s continuing support for the Psychiatric Security Review Board and its balanced approach to the competing interests involved here.
In sum, the majority result is a perversion of justice. It has absolutely nothing to do with a search for truth or a fair trial.’ In a word, it is gamesmanship. Once again, common sense in the administration of criminal justice escapes us.
I have considered defendant’s other assignments and conclude that they lack merit.
Gillette and Young, JJ., join in this dissent.In this court, defendant relies on the federal and state constitutions. At trial, he raised only statutory issues. Therefore, he may not rely on his constitutional arguments here. State v. Evans, 290 Or 707, 713, 625 P2 1300 (1981).
Defendant argues that, should we conclude that the trial court’s action was *349permissible, we should remand for an assessment of his ability to waive the affirmative defense. Defendant did not ask the trial court to apply any particular standard to assess his waiver. Rather, he argued only that our statutes do not permit the imposition of the affirmative defense over his objection. Therefore, I would not consider his remand alternative.
Criminal trespass in the first degree, ORS 164.255, is a Class A misdemeanor punishable by imprisonment for up to a year. ORS 161.615(1).
In support of its analysis, the majority cites Frendak v. United States, 408 A2d 364 (DC 1979), which focuses on a defendant’s current ability to make an intelligent and reasoned choice not to assert the insanity defense. The relevant inquiry should be whether defendant was suffering from a mental disease or defect at the time the crime was committed. If he was, he is legally blameless.