dissenting.
The five indictments here in question all allege theft "on or about the 26th day of March 1975.” Apparently concluding the date alleged in the indictments is meaningless, the majority holds the state is entitled to prove receipt of different firearms on different dates, and that such proof would establish five different crimes, exposing defendant to the possibility of 25 years’ incarceration. I disagree.
I
There is an even more serious inconsistency in this record, ignored by the majority, than the difference between the date alleged in the indictment and the dates the state now plans to prove the "crimes” were committed. At the outset of the hearing on the motion to consolidate, the prosecutor volunteered:
"* * * I believe the evidence will show that the cases relate exclusively to possession of stolen property, probably on a theft by receiving theory. All of the property was taken into custody by the burglary team in Lane County on the same date at the same location [defendant’s home] under the same circumstances * *
Throughout the balance of this hearing, the prosecutor consistently stated he was proceeding on a theory of simultaneous possession of stolen property.1
*10At the subsequent hearing on the motion to dismiss, conducted after defendant had been tried on Indictment No. 75-2601, the state made a substantially different presentation — that different crimes were involved because the defendant received the stolen firearms on different dates. This additional evidence had come to the state’s attention between the two hearings before the trial court by way of defendant’s own testimony during the trial of Indictment No. 75-2601.
I would hold that the prosecution is bound by its earlier pronouncement about the nature of the "charges” against defendant, i.e., a theory of simultaneous possession of stolen property. A large body of law forbids one litigant from shifting position to the other’s detriment. This law is usually collected under the general heading of estoppel; it could as well be collected under the heading of fundamental fairness.
Here the state has substantially shifted position during the course of litigation from, as the majority puts it, a theory that would only justify one trial, conviction and sentence (see footnote 1, supra) to a theory that justifies numerous trials, convictions and sentences. And the detriment to defendant is apparent. After having been told the state was proceeding on its initial theory, defendant elected to testify at the trial on Indictment No. 76-2601; had defendant instead been told the position the state now wants to assert, it is readily conceivable that he would not have testified.
Under these circumstances, it seems fundamentally unfair to me to permit the state, using information derived from defendant’s testimony, to now present a substantially different case in the five trials the majority holds the defendant must face.2
*11Under this holding, I propose, it would not be necessary to reach the abstract question of whether defendant’s alleged conduct is punishable as one or more crimes.
II
If, however, this question were reached, I would hold that defendant’s conduct, if proved, constitutes only one crime. My position, simply stated, is that there is no such crime in Oregon as receiving stolen property, because State v. Jim/White, 13 Or App 201, 508 P2d 462, Sup Ct review denied (1973), holds that the word "receiving” could be eliminated from our theft statutes without any change in the definition of the crime.
I generally agree with the majority’s methodology: the question of whether defendant’s conduct constitutes one crime, as held by the trial court, or at least five crimes, as held by the majority, is one of statutory construction.3 See generally, Annotations, 53 ALR3d 398 (1973); 37 ALR3d 1407 (1971); 18 ALR 1077 (1922).
The substantive crime here in question, first-degree theft, is defined in ORS 164.055, which contains a cross-reference to ORS 164.015, which, in turn, contains a cross-reference to ORS 164.095. The latter two statutes do refer to "theft by receiving,” suggesting that each act of receiving might have been intended to be a distinct offense.
However, it is impossible to so construe these statutes without overruling State v. Jim/White, supra. In that case this court held:
"* * * [T]he legislature has defined a single criminal act, substantial interference with property rights or *12unauthorized control of property, by describing the ways by which such an act can be committed. ORS 164.015(1) is a broad description of that act. An examination of the language of ORS 164.015(1) indicates that the legislature is not talking about separate acts that are included within one offense. It is referring to one single act that is described by the use of four words with definitions that are overlapping * * *. Thus, while ORS 164.015(1) describes 'theft’ by using four words, the effect is clearly to define one single concept. See Cameron v. Hauck, 383 F2d 966 (5th Cir 1967), cert denied 389 US 1039 (1968).
"ORS 164.015(2), (4) and (5) [which includes a reference to 'theft by receiving’] are merely refined descriptions of acts that are already embraced within the description of theft contained in ORS 164.015(1) * * *. ORS 164.095, theft by receiving, is another refinement of the words 'withhold’ and 'appropriate’ used in ORS 164.015(1). Thus, ORS 164.015(2), (4) and (5) add no new elements to the crime of theft; they are merely definitions of terms that are used in ORS 164.015(1).
"The minutes of the Criminal Law Revision Commission Subcommittee No. 1 indicate that the drafters of the code felt that all acts of theft were encompassed within the definition of ORS 164.015(1) but that ORS 164.065, 164.085, and 164.095 were necessary to insure that it would be clear to the courts that such acts as were described therein were intended to be included within the definition of theft * * 13 Or App at 218-19.
Under this analysis, the conclusion is inescapable that separate acts of receiving stolen property are irrelevant.
The majority at least cites Jim/White and, without stating reasons, concludes that each act of receiving stolen property is a separate "interference with” or "control over” the property of another. 27 Or App at 5. But receipt of property is not something distinct from the control over it which follows; receipt is merely the onset of control. And I fail to see how the person who receives stolen property is substantially interfering with the rights of the owner.
Jim/White and State v. Boyd, 271 Or 558, 533 P2d *13795 (1975), suggest that the real essence of Oregon’s crime of theft is illegal possession. In Boyd, a theft charge "was submitted to the jury upon the theory that defendant had committed theft solely by virtue of having retained and concealed” stolen property. 271 Or at 561. The Supreme Court stated:
«* * * Once unlawful possession of goods, without more, is recognized as criminal conduct, there is no reason for fragmenting the criminal conduct into as many parts as there are different items of property, however acquired. If a defendant is charged with possession of drugs, some of which had been acquired at one time and the rest at another time, it would seem clear that he would be entitled to object to multiple prosecutions. There would be no reason other than harassment of the defendant for the state to divide the condition of possession into parts and prosecute separately on each * * *.” 271 Or at 570-71.
I find this rationale controlling, with one minor qualification: I would hold that the hypothetical defendant who acquired illegal drugs at different times would not only be able to object to multiple prosecutions, he would be entitled to object to multiple charges on the grounds that his conduct only constituted one crime. Otherwise, the defendant who acquired two small quantities of drugs at different times would face twice the potential penalty as a defendant who possessed a greater amount of drugs acquired at the same time.
Exactly the same problem arises under the theft statutes. Is it possible that the legislature intended that the "fence” who acquires two small stolen items on different dates be liable for twice the penalty as a thief who takes a million dollars in a single act? I think not, and therefore dissent.
agree with the majority’s holding that the simultaneous possession of stolen property constitutes one violation of the theft statutes, not as many crimes as there are items of property, nor as many crimes as there are owners of property.
Moreover, I note that the majority’s disposition violates at least the spirit of the constitutional rule that no person can be compelled to incriminate himself.
The state’s opening and reply briefs discuss at length whether the one-crime versus several-crimes question should be resolved by the "same-evidence” test or the "same-transaction” test. My answer is neither. Those doctrines have nothing to do with interpretation of statutes defining crimes.