dissenting
Defendant was charged by amended information of the district attorney with "driving while suspended,” ORS 487.560. The amended information charged that the prohibited driving was "upon premises open to the public, to-wit: a parking lot near Brush College Road, N.W.” I shall assume for the sake of this discussion that ORS 487.535(1) intends to prohibit "driving while suspended” upon premises open to the public, although the language chosen to accomplish that intention is not absolutely clear. I do so because defendant has not challenged the effectiveness of the language in that respect. Moreover, I agree with the majority that defendant did not raise a "fair warning” issue. See majority opinion, n. 1.
The case was tried without a jury, and at the close of evidence defendant moved for a judgment of acquittal, ORS 136.445,
*905"on the ground that the state has failed to prove an element of the crime; that is, that the defendant drove upon premises open to the public. The theory that the state has proven through the evidence and stipulation is that he drove a vehicle and that he drove a vehicle on the parking lot described by Mrs. Johnson on Exhibit A, but we assert that that parking lot is not premises open to the public. That being an element of the offense of driving while suspended, we would move for a judgment of acquittal.”
The trial court denied the motion without explanation and then, apparently as trier of fact, made a "finding” that the parking lot described by Mrs. Johnson, the apartment manager, "is premises open to the public within the meaning of the statute.”
Defendant’s assignment of error was in denying his motion for judgment of acquittal. This raised only the question of whether the trial court was correct in finding that there was evidence which would support a verdict against the defendant. There was no jury, which relieved the trial court from having to define for the jury what is meant by the "general public,” upon which the statutory definition of "premises open to the public” turns. There is nothing to indicate what the trial judge thought "general public” meant, and there is nothing to indicate that the defendant contended for any definition, rejected by the trial judge, of the term "general public.” In other words, there is nothing in the record to show what was the trial judge’s concept of the meaning or application of the term "general public”; nevertheless, he made a decision which necessarily depended upon ascribing, as either a matter of law or of fact, or of both, some precise meaning to that term.
The only witness to testify as to the use of the parking lot for driving was Mrs. Johnson, the apartment manager. She testified that merchants, such as milkmen and paperboys, and visitors of tenants used the lot, in addition to the tenants. As the majority has said, she testified that the lot was "open to the public,” and that no attempt was made to "block off members of the public.” No place in the evidence, on direct or cross examination, was she ever asked whether the apartment parking lot was *906open to the "general public.” The closest she came to speaking of the "general public” was to answer "Yes” to the following question on direct examination: "And are they generally then open to the public?” On cross examination she testified:
"Q. * * * By generally open to the public, do you mean that the public is not barred from coming in there?
"A. No, they are not barred.
"Q. By saying that it’s generally open to the public, you’re not saying that the public is generally invited in [?]
"A. No, we don’t invite the public in. Actually, we prefer the public out because it is not a thoroughfare. There’s one way in and you have to leave the same way.”
Obviously both the prosecutor and the defendant’s counsel equated "generally open to the public” with "open to the general public.” I submit each missed the mark as to the issue involved. The legislature chose to define "premises open to the public” in terms of availability of the premises for use by the "general public.” The motion for judgment of acquittal requires that the court find that there is evidence that the premises were open to the "general public” for the use of motor vehicles. This, of course, requires someone to state what is meant by "general public.” The legislature apparently decided someone else should do it. If it is an issue of fact, no one did it in the evidence. The trial court did not do it, either as a matter of fact or as a matter of law. The Court of Appeals issued no opinion.
That leaves this court as having to do it in order to affirm this conviction. I have searched the majority opinion in vain for any definition of the words "general public.” The only places those words are even mentioned are in quotations from ORS 487.535, in quotations from the general commentary of the drafters of the Oregon Vehicle Code of 1975, and in testimony before the legislature of the drafters’ Project Director. In none of those sources is the term "general public” defined.
Instead of giving any definition of the term "general public,” the majority cites us to the commentary and the Project Director’s testimony as to what the drafters were trying to do. We are given examples of the sort of premises the drafters had in mind. The examples do not even specifically include an apartment house parking lot such as this. *907Nevertheless, the majority holds, apparently as a matter of law, that this lot was of the kind noted in the examples.
I submit that it is not even the same kind of lot as those used by the Project Director in his testimony to the legislature. In answer to a question calling for an answer as to what kind of premises were intended to be covered, the Project Director mentioned "taverns, department stores, supermarkets, etc.” The majority underscores "etc.” as if it has some special significance. In Webster’s Third New International Dictionary, 1976, the first definition of "et cetera” is "and others esp. of the same kind.”
Assuming that a criminal conviction should rest upon this kind of legislative history, in which the majority finds special significance in the use of an "etc.,” I would point out that each of the examples refers to the parking lot of some mercantile, retail business establishment. Presumably those lots are for the use of prospective customers, but even if they are open to persons using them as a way from one point to another rather than as a destination, they are of a different kind than this apartment parking lot. There is no evidence whatsoever in this record that any occupant of this apartment conducted an on-premises business, selling merchandise, or even services, and had customers who used the parking lot. There is no evidence whatsoever that the apartment parking lot was used as a way rather than a destination. Indeed, the uncontradicted evidence of the state’s witness is that there was no thoroughfare; this was a dead-end driveway, barely wide enough for a car to pass between the parking stalls on both sides of the drive. The kind of "merchants” who used the lot were deliverymen of one sort or another.
It simply does not seem to me that this is the kind of premises or the kind of "general public” with which the statute is concerned, either by its terms or by the examples found in the legislative history.
Neither the legislature nor the courts have defined that term which must be defined so as to give a standard against which to test the sufficiency of this evidence to support a verdict of guilty of the crime charged. In the long run, the courts do a disservice to the common weal when the courts undertake to uphold felony convictions for *908alleged violations of statutes as poorly drafted as this one. It were better, over the long haul, to send the legislature back to the drawing board to correct its errors than to forgive that body for its false starts by deciding cases upon the basis of what the legislature tried to do rather than what it did, or didn’t, do. Compare, majority opinion, n. 1.
Defendant’s motion for judgment of acquittal should have been granted.
I dissent.
Linde, J., joins in this dissent.