dissenting.
Contrary to the opinion of the majority I believe that the defendant here was guilty of one, not two, criminal acts and should not have received two separate sentences for violation of former ORS 165.115.
As the majority points out, the defendant, in a single transaction gave the First National Bank two false cheeks in exchange for $6,107. Writing the separate checks was not criminal. The defendant’s conduct became criminal only when, in a single transaction, he tendered the checks to the bank as genuine in exchange for the money. While the holdings are not directly determinative of the issue, I think that application of the philosophy which underlies State v. Woolard, 259 Or 232, 484 P2d 314, 485 P2d 1194 (1971), and State v. Boyce Lovell Brown, 262 Or 442, 497 P2d 1191 (1972), requires a conclusion that here only one criminal act occurred.
It can be argued that the statute, former ORS 165.115, by use of the singular indicated a legislative intent that the passing of each false instrument constituted a separate crime. However, State v. Woolard, supra, tells us that the statutes of this ilk are not to be read literally when to do so would produce a harsh and probably unintended result.
Admittedly, it may at times be difficult to determine when a transaction constitutes more than one punishable crime; but I believe no unusual difficulty is presented here.
*145If a defendant obtained 20 counterfeit one dollar bills and exchanged them at a bank for 20 silver dollars, I doubt that we would hold that he was guilty of 20 separate violations of the “passing a false instrument” statute. Certainly if a defendant sold two marihuana cigarettes at the same time and place and to the same individual we would not hold the defendant guilty of two separate crimes.
The basic principles enunciated in Woolard and Brown are not new to Oregon jurisprudence. For example, the concept of a single transaction constituting but one crime, even though more than one article or person be involved, has been with us for many years. In State of Oregon v. McCormack, 8 Or 236 (1880), the court held that a defendant charged with larceny of a horse, saddle and bridle taken at the same time and place and from the same person was involved in a single criminal transaction constituting but one crime. In State v. Clark, 46 Or 140, 80 P 101 (1905), the court held that the stealing of articles belonging to two or more persons at the same time and place constituted but one criminal offense.
For the foregoing reasons I respectfully dissent.