specially concurring.
Defendant was charged with the crime of harassment, ORS lCS.OGSdXa),1 in that he subjected another to offensive physical contact by spitting in his face. The defendant’s demurrer was sustained by the district court upon its finding that, under State v. Sallinger, 11 Or App 592, 504 P2d 1383 (1972), spitting in another’s face was not the type of physical contact covered by the statute.
In State v. Sallinger, we held that ORS 166.065(1) (a) is not unconstitutionally vague. In doing so, we pointed out that this subsection of ORS 166.065 was derived from New York Penal Law § 240.25(1) (McKinney 1967), Proposed Oregon Criminal Code 218, Commentary, § 223 (1970), and that the legislature, when it borrows a statute, is presumed to adopt the interpretation of the statute reached by the New York courts, absent some indication to the contrary. State v. Sallinger, supra at 597; cf. State v. Clark, 39 Or App 63, 591 P2d 752 (1979). The cited New York statute provides that one commits the crime of harassment if:
"He strikes, shoves, kicks, or otherwise subjects [another] to physical contact * *
We concluded in Sallinger that the statute must have intended to cover physical contacts resulting in something less than impairment of physical condition or substantial pain, and while the lower limits of "offensive physical contact” were less clear, the legislature meant to include "striking, slapping, shoving, kicking, grabbing, and similar acts that are an interference with the 'contactee,’ regardless of whether they produce any pain or discomfort.” 11 Or App at 598.
*149We did not, in Sallinger, go on to consider how the New York courts have interpreted "physical contact,” as that term is used in the New York statute. Their interpretation of the phrase includes all petty batteries, no matter how technical or inconsequential. People v. Hare, 66 Misc 2d 207, 319 NYS2d 890 (1971); People v. Smolen, 69 Misc 2d 920, 331 NYS2d 98 (1972); New York Penal Law 159, Practice Commentary, § 240.25 (McKinney 1967). The Criminal Law Revision Commission’s Commentary to the Proposed Oregon Criminal Code adopts the same interpretation:
"Paragraph (a) is designed to prohibit conduct presently constituting 'simple assault.’ The assault sections in Article 11 require a physical injury. Petty batteries not producing injury will not constitute criminal assault under [the assault statutes]. If petty battery is committed with the intent to 'harass, annoy or alarm’ it will be subject to prosecution as harassment.” Proposed Criminal Code 218, Commentary, § 223 (1970).
A majority of the court now abandons the New York "adoption” articulated in Sallinger and recently restated in Clark, and goes off on an ad hoc application of an otherwise overly vague statute. State v. Sanderson, 33 Or App 173, 575 P2d 1025 (1978). Unless we can find an anchor to tie "offensive physical contact” to, its application will continue to be elusive, as Judge Joseph in his separate opinion seems to sense. The trial court reasonably interpreted Sallin-ger — it appears to require direct physical contact: "striking, slapping, shoving, kicking, grabbing and similar acts.” This court is unanimous in agreeing that the trial court erred, but we cannot agree on the reason. Perhaps that circumstance, in itself, should tell us something is wrong.
I would accept the New York court’s interpretation of that state’s similar statute and the Criminal Law Revision Commision’s Commentary, and would hold that "offensive physical contact” includes all common *150law petty batteries. Absent that anchor, the statute should be laid to rest because of its uncertain meaning.
Accepting that interpretation, the remaining question is whether spitting in the face of another is a common law petty battery. At common law, a battery was any intentional, unlawful touching or striking of the person of another by the aggressor himself or by any substance put in motion by him. 1 Wharton, Criminal Law and Procedure 684, § 337 (Anderson 1957). Neither injury nor direct person-to-person touching was necessary; e.g., throwing rocks at another or striking them with a stick. Spitting into another’s face without consent constitutes a battery.2
In summary, I conclude that the legislature intended the harassment statute to cover those petty batteries formerly covered by the assault statutes (when committed with the requisite intent) and that spitting in the face of another, being a battery, is "offensive physical contact.”
ORS 166.065(l)(a) provides:
"(1) A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he:
"(a) Subjects another to offensive physical contact * *
The specially concurring opinion in State v. Sallinger, 11 Or App 592, 600, 504 P2d 1383 (1972), foresaw the fact situation before us today:
"* * * Thus a person who kissed a total stranger, or placed his hands on, for example, a stranger’s sexual organs, or spat into a stranger’s face would have committed a common law battery. * * *”