Dеfendant was indicted for the crime of being a convicted felon in possession of a concealable firearm (ORS 166.270). ① He waived jury trial, was tried by the сourt and found guilty as charged. He appeals from this conviction, citing as error the following:
(1) “The trial court erred in overruling the motion to suppress еvidence because the search that resulted in the finding of such evidence [the firearm] was unreasonable.
(2) “The trial court erred in finding the defendant guilty sinсe there was a lack of proof that he had been convicted of a felony. * * * A felony is a crime which is punishable by imprisonment in the penitentiary of this state and the prosecution to the contrary proved only that the defendant had been convicted of a crime punishable by imprisonmеnt in the penitentiary in the state of Idaho.”
The essential facts as disclosed by the record are as follows: Defendant, at the time of his arrest, was in thе apartment of Peggy Lynn Myers. Previously he had been convicted of the crime of forgery in Idaho and sentenced to the state penitentiary for five years.
*449 On the date in question Officer Stedman (of the Medford Police Department) went to Mrs. Myers’ apartment to arrest her on a warrant charging her with furnishing liquor to a minor. Mrs. Myers answered the door. Stedman asked if she was Peggy Myers. She replied that she was. He then showed her the warrant, advising her that he had a warrаnt for her arrest for furnishing liquor to a minor. At this point in their conversation the officer entered the living room of the apartment, informing Mrs. Myers that he was taking her to jail, and that it would be necessary for her two children to be “taken care of by the Welfare Agency.” As he entered the apartment he saw the сhildren. Thereupon Mrs. Myers categorically refused to allow the removal of the children from the apartment. The officer then asked her if therе was anyone else in the house. She replied that the defendant was in the bedroom. He asked if he could talk to the defendant. Mrs. Myers replied that hе was asleep.
At that moment a voice came from the bedroom, saying, “I’ll talk to them.” Subsequent events are best understood by quoting directly from Stedman’s testimony at the trial.
“A [Stedman] * * * I proceeded in the bedroom with Mrs. Meyers, and at that time observed Douglas Earl Jones [defendant] seated on the edge of the bed.
“Q [District Attorney] What happened then?
“A I identified myself showing my badge and he indicated he knew I was a Police Officer. As he started toward me so we could go back out in the front room I оbserved a twenty-five automatic pistol on the dresser along the doorway in the bedroom.
“Q What happened after that?
“A I interjected myself into the position be *450 tween Mr. Jones and the weapon where the weapon would be behind as he passed by me and he went out in the hallway. At this time I picked the weapon up and Mr. Jones advised me, without prompting, T had nothing to worry about, the weapon was empty.’
“Q What happened then?
“A I told him I became nervous when guns were around and I made an arrest and he would have to excuse me. I then asked who the weapon belonged to and he indicated that it was his, and as I picked it up and we proceeded down the hallway toward the living room I asked him if he hadn’t just recently been released from the State Penitentiary in Idaho, he indicated that he had. I said, ‘Wasn’t that a felony,’ and he said,, ‘Yes.’ I said, ‘What wаs the charge,’ and he said, ‘Forgery.’ I then advised him that he was under arrest for being an ex-felon in possession of a concealed firearm. That was after the second time I asked if that was his weapon. That question might not have been in that order but that was the question that was asked.
“Q Did you arrest him at that time?
“A I did.”
Taking up the first assignment of еrror, namely, the alleged unreasonable search and seizure, we are at a loss to find any basis for defendant’s claim that the officer acted illegally in seizing the weapon. The evidence is uncontroverted that the defendant volunteered to talk to the officer; that the latter was lawfully in the bedroom; that the weapon was lying atop of the dresser in plain view of anyone entering the bedroom; that the officer did not engage in any “sеarch”; and that defendant readily admitted ownership of the weapon. ②
*451
As we stated in
State v. Robbins,
91 Adv Sh 475,
“* * * Evidence of a crime in plain view from a place where an offiсer is entitled to be is subject to seizure. State v. Brown,1 Or App 327 ,461 P2d 836 (1969); State v. Johnson,232 Or 118 ,374 P2d 481 (1962). * * •”
The same rule is set forth in
Harris v. United States,
Chimel v. California,
We now take up the second assignment of error. The defendant admits that he had previously been convicted оf a “crime punishable by imprisonment in the penitentiary in the state of Idaho” but contends that since he was not convicted of a felony committed in thе state of Oregon the court erred in convicting him. He points to the statutory definition of a felony in Oregon (ORS 161.030) ③ and argues that *452 criminal laws are to be strictly construed and thаt a person who has been convicted of a felony in another state and found in possession of a concealable firearm in this state is not within the terms of ORS 166.270:
The common law rule of strict construction of criminal statutes is not applicable in this state; having been .expressly abrogated by ORS 161.050.
State v. Anthony,
The sole object of ORS 166.270, as indicated by the title of the original enactment (Oregon.Laws 1925, ch 260), is to “control the possession, sale and use of pistols and rеvolvers * * *” in this state, and particularly to prohibit possession of concealable'firearms by aliens and convicted felons.
. .The statute by its terms is not limitеd in. its application to persons convicted in this state..; Uefendant has cited no decision in support of his contention nor have we discovеred any. ,
■.. Although this question apparently has never been squarely passed upon by. this court or the Oregon Supreme Court, the Supreme Court, in at least-three instances, has upheld convictions under or involving ORS. 166.270 (but on other issues), where - the - prior
*453
felony conviction (s) occurred in another state or other states, see
State v. Cory,
A similar rule obtains in applying the so-called habitual criminal statutes of this and other states, where prior convictions obtained agаinst a defendant in other jurisdictions may be used to enhance the penalty provided in the sentencing state.
State v. Glenn,
The judgment below is therefore affirmed.
Notes
ORS 166.270 provides:
“Any unnaturalized foreign-bom person or any person who has been convicted of a felony against the person or property of another or against the Government of the United Statеs or of this state, or of any political subdivision of this state, 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, or machine gun, shall be punished upon conviction by imprisonment in the penitеntiary for not more than five years.”
Nq issue is raised in this appeal of whether or not the of-
*451
ficer’s questions should have been preceded by advice to the defendant of his rights. Miranda v. Arizona,
ORS 161.030 provides:
“(1) Crimes are divided into felonies and misdemeanors.
“(2) A felony is a crime which is punishable by imprison *452 ment in the penitеntiary of this state. When a crime punishable by imprisonment in the penitentiary is also punishable by a fine or imprisonment in a county jail, in the discretion of the сourt, it shall be deemed a misdemeanor for all purposes, after a judgment imposing a punishment other than imprisonment in the penitentiary or in the Oregon State Correctional .Institution. ' ■ ■
"(3) Every crime not included in subsection (-2)' of this section is a misdemeanor.i’ ■■