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Oregon v. Welch

February 1, 1973

STATE OF OREGON, RESPONDENT,
v.
FRANCIS JOSEPH WELCH, PETITIONER



On review from the Court of Appeals.

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, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

In Banc. Holman, J.

Holman

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. 11 Or App 140, 500 P2d 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 upon which the checks were purportedly drawn did not exist. 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 ...


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