State v. Welch

• Decision Date: 01 February 1973
• Citation: 264 Or. 388,505 P.2d 910,96 Or.Adv.Sh. 631
• Parties: STATE of Oregon, Respondent, v. Francis Joseph WELCH, Petitioner.
• Court: Oregon Supreme Court

Page 910

505 P.2d 910

264 Or. 388

STATE of Oregon, Respondent, v. Francis Joseph WELCH, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 8, 1973.

Decided Feb. 1, 1973.

F. E. Glenn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

HOLMAN, Justice.

Defendant was convicted on two counts of publishing false checks under ORS 165.115 and was sentenced to four years' imprisonment on each count, the sentences to run concurrently. Defendant appealed and the convictions and sentences were affirmed by the Court of Appeals. Or.App., 95 Adv.Sh. 902, 500 P.2d 1071 (1972). This court accepted review.

At the same time and by the use of one deposit slip, defendant deposited in his bank account two checks purportedly drawn in defendant's favor by a third party on an account in a California bank. Defendant drew the money represented by the checks from his account before his depositing bank learned that the account did not exist upon which the checks were purportedly drawn. He was charged on a separate count for passing each of the two checks. The jury found the checks to be fictitious and known to be so by defendant, who intended to use them to defraud the bank, and convicted him on both counts.

Defendant raises several questions on review. We consider all of them except one to have been adequately answered by the opinion of the Court of Appeals. We will, therefore, confine our attention to the question which we believe did not receive adequate consideration. Despite the fact that two checks were involved, defendant claims that he was guilty of only one offense and that he can receive only one sentence because both checks were published simultaneously in one fraudulent transaction.

We commence our analysis by deciding that no problem of constitutional magnitude is involved. The legislature may, if it so contemplates, render the passing of each check a separate crime punishable by a separate penalty. In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), the petitioner was convicted and sentenced for three separate crimes arising out of a single sale of narcotics. The three charges were: 1) a sale not made pursuant to a written order of a purchaser; 2) a sale not in the original stamped package; and 3) facilitating the concealment and sale of drugs with knowledge that they had been unlawfully imported. The first two charges were violations of separate provisions of the Internal Revenue Code and the last charge was a violation of a provision of the Narcotic Drug Import and Export Act. The Supreme Court of the United States held there that Congress could provide for separate offenses arising out of the same sale and could provide for the imposition of a separate penalty for each offense without violating the constitutional rule against double jeopardy.

The Court further held that whether there was one offense or more than one was a matter of legislative intention and it found in Gore that Congress had intended separate crimes and penalties. The Court cited Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), which was a case that involved application of the Mann Act--a single provision making it a crime to transport a woman in interstate commerce for the purpose of prostitution. In that case, the Court held that the transportation of more than one woman in a single transaction was to be dealt with as a single offense because Congress had not explicitly defined the unit of offense and that doubt should be resolved in favor of lenity.

The distinction between double jeopardy and the present situation is tersely stated in Fisher, Double Jeopardy: Six Common Boners Summarized, 15 U.C.L.A.L.Rev. 81, 86 (1967), as follows:

'Double jeopardy does not occur unless a man is tried twice; it takes two trials to raise the issue. This is not as obvious as it sounds. Defendants being tried for the first time continually insist that the prosecutor, by joining several overlapping offenses in separate counts in one indictment, is violating the prohibition against double jeopardy. They are even more insistent that they are subjected to double jeopardy when they have been convicted on more than one count and receive cumulative penalties aggregating more than the most severe sentence on one count.

'A defendant may be right in his conclusion that such cumulation of penalties is improper, but he is mistaken in thinking that it is double jeopardy. The true reason why he is right is that double punishment is not permissible under the applicable statutes, I.e., the legislature did not intend him to be sentenced on more than one count * * *.'

Similar questions have not been unknown in this state. In State v. Clark, 46 Or. 140, 80 P. 101 (1905), the defendant was charged in one indictment with stealing at the same time and place a mare and a gelding belonging to one person and a gelding belonging to a second person. Defendant demurred to the indictment, contending he had been charged with two crimes by one indictment in that he was charged with taking the property of two persons. This court held that the stealing at the same time and place of articles belonging to two or more persons constituted one crime, and sustained the overruling of the demurrer.

In State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971), the question presented was whether a defendant could be convicted and sentenced for the crimes of burglary and larceny arising out of the same criminal conduct. We adopted the test of legislative intent. Applying this test, we decided it was not the legislative intent that a defendant be punished for each crime. The rationale was that the larger penalty for breaking and entering was provided by statute probably because a lawless intrusion is performed with the intent to commit another crime when the intrusion is completed. If this was the reason for the imposition of the greater penalty for burglary, w...