¶1 specially concurring.
¶2 The attack upon the sufficiency of the indictment urges that since the indictment does not state that the concealed weapon, which it accuses the defendant of having carried, had a barrel less than twelve inches in length, the demurrer should have been sustained. Section 25-112, O. C. L. A., being the section of our laws which the defendant was accused of having violated, was § 2 of chapter 260, 1925 Oregon Laws. The latter contained seventeen sections and many provisions. One of the latter follows:
“The terms ‘pistol’, ‘revolver’, and ‘firearms capable of being concealed upon the person’, as used in this act, shall be construed to apply to and include all firearms having a barrel less than twelve inches in length.”
¶3 Section 26-712, O. C. L. A., says:
“The words used in an indictment must be construed in their usual acceptation, in common *658 language, except words and phrases defined by law, which are to be construed according to their legal meaning.”
¶4 Therefore, the term “a firearm capable of being concealed upon the person”, as employed in the indictment, must be deemed as having the meaning set upon that phrase by § 25-112. I concur in the views expressed by Mr. Justice Kelly in this phase of the case, but add the f oregoing as explanation:
¶5 I come now to the legality of the arrest and of the search. The arresting officer was W. F. Mann, a member of the police department of the city of Baker, who was acting in conjunction with another officer by the name of Raj7 Tipton. A careful reading of the record has satisfied me that Officer Mann, upon arresting the defendant, told him that the charge was vagrancy. I believe that the arrest preceded the search. It is well established that an officer may lawfully search his prisoner after the arrest so as to assure himself that the prisoner bears no weapon with which he can injure the officer or effect his escape. The search which was made by Officer Tipton after the arrest disclosed the concealed weapon. When the defendant was taken to the police station the charge was changed from vagrancy to the one set forth in the indictment.
¶6 The question now occurs as to whether or not the arrest was lawful. Section 26-1532, O. C. L. A., says:
“A peace officer may without a warrant arrest a person: (1) for a crime committed or attempted in his presence; (2) …
¶7 Section 26-1534 says:
“When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in the actual commission of a crime …
¶8*659 Officers Mann and Tipton both wore police uniforms and police caps. No one claims that the defendant failed to recognize them as police officers.
¶9 Section 23-1310, O. C. L. A., defines vagrancy in the following words:
“Every person without visible means of living, who …; every idle or dissolute person … who wanders about the streets or highways, at late or unusual hours of the night …, and every person who shall conduct himself in a violent or riotous, or disorderly manner * #
¶10 I direct attention to the term “disorderly manner”.
¶11 Officers Mann and Tipton were patrolling the streets of Baker after midnight in a prowl ear when they observed the defendant upon a dark street. They were unacquainted with him and had never seen him before. He was walking east on Valley Street toward First Street and had stepped from the curb into the street. According to Mann, the defendant “kept throwing his head back and then he would jerk it back, his coat collar was turned up and he kept throwing his shoulders up. ’ ’ Due to these circumstances the officers thought that they ought to watch him. When their eyes fell upon him he got back upon the sidewalk and resumed his easterly direction. At that moment the car in which the officers were riding was a few feet from the intersection of Valley and Second Streets, that being the intersection from which the defendant had come. The officers decided to go to the intersection, make a U-turn and thereby keep in sight of the defendant. Mann was the driver of the car and Tip-ton looked out of the rear window as they approached the intersection so that he could observe the defendant. The latter at once broke into a run and rounded a *660 building at the southeast corner of First and Valley Streets known as the VFW building.
¶12 When the police car had made the U-turn and got alongside the VFW building, Mann stopped it and ran south on First Street, that being the direction in which the defendant had gone. Paralleling First Street on the opposite side of the VFW building was an alley. Tipton hastened south down the alley. South of and adjacent to the rear of the VFW building was a vacant area in which were a couple of fences. When Mann entered the vacant area he could see, so he swore, “a head bobbing over there,” that is, near the fences. It is evident that the defendant had to run rapidly in order to reach First Street, turn south into that street, run down First Street to the rear of the VFW building and then make his way in the vacant lot to the vicinity of the fences in the short time that the officers made the U-turn, parked their car and entered the vacant lot. It is seen from the description that has just been given that the defendant, after he was first seen by the officers, had virtually reversed the direction in which he was going when first seen. When Mann saw him in the vacant lot the defendant was still running and was almost beyond the range of Mann’s voice. As Mann entered the lot he shouted to the defendant to stop. When Mann was asked, as a witness, “Did he stop?” he answered, “No, sir. He picked up speed.” He again called to the defendant to stop and again met with no response. When he shouted his command a third time the defendant stopped. Then Mann approached the defendant and asked him why he was in a hurry. When no reply was received, the arrest was made.
¶13 Mann swore, “I am sure I could drive up, turn around and go back before a man goes two-thirds of *661 the block if he is just walking along and not in a hurry. … He was in pretty much of a hurry. … He had to be to get that far ahead of us.”
¶14 The defendant did not testify. However, there is before us an affidavit signed by him which accompanied a petition which he filed for the return of the revolver. It recites that the defendant lived in Portland, but gives no street address. According to it, the defendant entered Baker by automobile, and wishing to send a telegram, parked his automobile and was walking toward the business district when the officers observed him. Going on, the affidavit states that after the defendant had walked a couple of blocks he noticed that he was still some distance from the business district and thereupon decided to return to his car. In that way the affidavit accounts for the defendant’s reversal of direction. It fails, however, to explain his haste and change of streets.
¶15 From the foregoing it will be observed that the officers were going about their business of patrolling the streets when they observed the defendant. The latter’s peculiar conduct attracted their attention. They, however, did not say a word to him, but decided to reverse their direction so that they could watch his actions. At that moment he broke into a run, disappeared around the corner of a building and shortly entered a vacant area. When seen in the area he was still running and was going in a direction virtually opposite to that which he was pursuing when first seen. The arresting officer had to adopt a lively pace to keep up with the fleeing defendant and found it necessary to yell the word “Stop” three times. WTien Mann overtook the defendant he asked for an explanation and, receiving none, made the arrest. The hour was past midnight, the streets were dark, and the *662 defendant had fled from the streets into a vacant space which was crossed with concealing fences. No less a source than the Book of Proverbs brings down to us through the ages the observation, “The wicked flee when no man pursueth. ’ ’ I think that the officers were justified in believing that the defendant at the time of his arrest was conducting himself in a disorderly manner. Our statute deems one who acts in such a manner a vagrant. The arrest was, therefore, • lawful.