concurrence">TANZER, J.,

specially concurring.

I join my four colleagues in their statutory analysis, as far as it goes. It does not, however, go the dispositive distance. To say that this case presents no constitutional claim is to ignore the entire record and to deny defendant his due.

Defendant’s assertion of his statutory right is not an abandonment or waiver of his constitutional right. He has asserted his constitutional right in the trial court, the Court of Appeals, and here. The quotation from his petition, upon which the majority relies to avoid the constitutional issue, merely reflects defendant’s understanding that the double jeopardy statutes are broader than their constitutional counterpart. By pressing his statutory argument and retaining his constitutional argument as a fallback, defendant recognized that State v. Hammang, 271 Or 749, 534 P2d 501 (1975), is against him and that courts prefer a statutory rationale where possible. He has waived nothing.

*826Defendant has consistently, if not articulately, based his position on constitutional grounds as defined in State v. Brown, 262 Or 442, 497 P2d 1191 (1972). In the district court, he cited only two authorities, both cases based upon Art I sec 12 of the Oregon Constitution: Brown and State v. Sleeper, 36 Or App 227, 584 P2d 333 1978). The state appealed, stating the only "Question Presented” to be:

"Where two crimes arise out [of] the same transaction and/or criminal episode will a plea of guilty to one of the two crimes bar prosecution of the second offense under State v. Brown and State v. Hammang?”

Defendant responded that the statute protected him regardless of the rule in Hammang. Because of the posture of the case, it was unnecessary for him as respondent to reassert his constitutional argument. The Court of Appeals reversed, construing ORS 131.505(5) by reference to the analogous constitutional reasoning of Hammang. We allowed review to determine the applicability of Hammang. Again, defendant argued that the statute was broader than Hammang.

There is no hint in any of defendant’s arguments in any court that defendant intends to abandon or waive his constitutional claim if his statutory argument fails. For the majority to so hold is, I believe, to play technical games with the defendant’s rights. Because the entire court holds that the statute does not bar this prosecution, defendant’s challenge requires us to reach the constitutional issue.

Moreover, the majority is avoiding the difficult and unpleasant task of facing up to a theoretically flawed body of constitutional law which developed commencing with our abandonment of traditional double jeopardy principles in State v. Brown. When faced with such a problem in the case law, we can either find a real or fancied technical reason to walk away from it, as the majority does here, or we can face up to it. Review is an opportunity to deal with such problems, not to avoid them. Accordingly, I am *827publishing my analysis as a separate opinion in the hope that it will cast some light when a future majority decides to tackle this bothersome issue.

It is axiomatic that the court will decide any case on a constitutional basis only if it cannot be resolved on a basis of lesser legal magnitude, usually statutory. In this case, however, that is more easily said than done. A purely statutory approach to the Oregon law of double jeopardy, such as that attempted by the majority, is impossible and misleading because the concepts embodied in our statutes regulating successive prosecutions have been adopted, explained and applied in our cases as constitutional doctrine.1 Thus, it is impossible to determine the meaning and scope of the pertinent statutes without also examining constitutional case law. It is the preliminary purpose of this opinion to sort out what is statutory and what is constitutional in the Oregon law of double jeopardy.

Because the analysis is involved, an outline may be helpful so that the reader may follow my analytical path more easily. In brief, my opinion will demonstrate the following:

1. Oregon statutes embody both (a) the constitutional bar, and (b) an extended legislative bar on successive prosecutions.

2. In State v. Brown, 262 Or 442, 497 P2d 1191 (1972), we adopted a novel constitutional rule embodying both the constitutional and legislative elements of the statute. The fundamental logical error in Brownhas led to logical error in succeeding cases.

3. In State v. Hammang, supra,we attempted to avoid the "absurd result” of literal application of the Brownrule. We adopted and applied the constitutional/legislative distinction embodied in the statute. In doing so, we overruled Brown, entirely, but said we did so only partially.

*8284. The holding in Hammangthat a charge which terminates with a guilty plea is not a prosecution was error. A guilty plea entered without knowledge of the appropriate prosecutor is a prosecution, but it does not bar subsequent prosecution for other offenses arising from the same criminal episode.

5. The charges here are for two offenses, not for the same offense.

ORS 131.515 AND ITS HISTORY

I do not disagree with the statutory analysis by the majority, but my approach is different. The pertinent statute is ORS 131.515(1) and (2):

"(1) No person shall be prosecuted twice for the same offense.

"(2) No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”2

This statute was enacted by the 1973 legislature as part of a comprehensive revision of criminal procedure based upon the Proposed Criminal Procedure Code drafted by the Criminal Law Revision Commission. ORS 131.515 corresponds to section 27 of the proposed code which was enacted without change in wording.

The commentary of the Criminal Law Revision Commission explaining section 27 is instructive regarding legislative intent. The Commission took pains to explain that the origins of subsections (1) and (2) are different: subsection (1) is constitutional;3 subsection (2) is legislative.

"Subsection (1) restates the double jeopardy provision of Article I, § 12, Oregon Constitution. This draft does not attempt to 'torture’ the words 'same offense’ *829into the meaning, 'same transaction.’ To do so would overturn many Oregon cases. Instead, the draft follows the cases concerning 'same offense’ but expands compulsory joinder of related offenses in subsection (2).

«:£ * * * *

"Subsection (2) states the general policy that a person shall not be unnecessarily subject to multiple trials. Generally this idea has been attached to the double jeopardy clause under the so-called 'same transaction’ test. Here, the consideration of fair trial and due process of law should be ample basis for restricting separate trials for the same criminal episode.* * *” Commentary, § 27 at p 20.4

The recognition by the Commission that the constitutional prohibition of double jeopardy in subsection (1) and the legislative "general policy” against multiple prosecutions are distinct concepts was analytically correct. This follows because subsection (2) contains two exceptions that are immaterial to whether multiple prosecutions are for "one offence”: (1) knowledge by the prosecutor of other offenses committed as part of the same episode, and (2) venue in the same court. The constitutional bar against double jeopardy embodied in subsection (1) has no exception for cases involving unknowing prosecutors. Nor does the constitutional bar except cases with different venue. The bar of Article I, section 12 of the Oregon Constitution is absolute within the scope of its application; without exception, absent a waiver, successive prosecution for the "same offense” is barred. There can be no valid statutory exceptions to a constitutional prohibition. *830State ex rel Oregonian Publishing Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980).

Exceptions can only apply to a bar to prosecution which is beyond the scope of the constitutional bar. The Commission recognized correctly that subsection (1) embodies an absolute constitutional bar against double jeopardy regardless of prosecutor’s knowledge and rules of venue, and that subsection (2) is a legislative protection arising from "general policy” considerations of "fair trial and due process of law” regulating a class of multiple prosecutions in addition to that which is barred by the double jeopardy clause. The distinction, however, was not preserved in State v. Brown.

STATE V. BROWN ANALYZED

Any attempt at straightforward statutory analysis of double jeopardy founders on our decision in State v. Brown, because that opinion interwove separate statutory and constitutional strands of the Oregon law of double jeopardy. A review of the Brownopinion is instructive.

In Brown, a plea of former jeopardy to a charge of being an exconvict in possession of a firearm was upheld after a previous conviction on a guilty plea for carrying a concealed weapon, both charges arising from the same incident. The court initially recognized the traditional "same evidence” test: former jeopardy exists if one charge requires proof of elements identical to those which prove the other charge, see, e.g., State v. McDonald, 231 Or 48, 365 P2d 494 (1961) cert den 370 US 903 (1962). It then stated that the test was not firmly established in Oregon or federal constitutional law, but cited no Oregon or federal cases casting doubt upon it or establishing any other constitutional test. It stated generally that the purpose of the double jeopardy clause was protection against harassment by successive prosecutions. It then concluded, without explanation, that the "same evidence” test did not adequately provide such protection.

*831To formulate a new and satisfactory constitutional rule to provide supplemental protection, the court in Brownlooked to the "same transaction” test as embodied in statutes (not constitutional law) from a few other states, the American Law Institute Model Penal Code Proposal, and, particularly, section 27 of the Proposed Criminal Procedure Code, which was later enacted as ORS 131.515. The court expressly recognized that the proposed Oregon statute would bar prosecution more extensively than the New York statute, the Hawaii rule or the Model Penal Code because it would require joinder of charges of offenses with different elements directed at different evils. Nevertheless, it then adopted the Concept of subsection (2) of the proposed statute, with some word changes, as constitutional doctrine:

"* * * We hold, therefore, that under Article I, Section 12, of our constitution, a second prosecution is for the 'same offense’ and is prohibited if (1) the charges arise out of the same act or transaction, and (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution.” 262 Or at 457-58.

The change in wording is significant because it points up the logical and semantic consistency of the statutoiy formulation compared to the inconsistency of the newly announced constitutional rule. The words of the proposed statute recognized that multiple offenses may arise from one transaction:

"No person shall be separately prosecuted for two or more offenses based upon the same criminal episode * * (Emphasis added.)

In contrast, the Brownrule is that two or more offenses constitute the same offense if they arise from the same transaction:

"* * * [A] second prosecution is for the \same offense’ * * * if* * * the charges arise out of the same act or transaction * * (Emphasis added.)

The semantic illogic is obvious. We later characterized it succinctly as "the one transaction - one offense *832equation.”5 It is this shift in meaning, equating "same offense” with all the offenses arising from the same "transaction,” which this court later abandoned in Hammang.

The Brownrule is unsupportable not only because it fails to give the phrase "same offense” its plain meaning, but also because it suffers from the two logical infirmities which the Criminal Law Revision Commission avoided: whether prosecutions are or are not for the "same offense” has nothing to do with (1) the state of the prosecutor’s knowledge, or (2) the jurisdictional rules of a statutory two-level trial court system. Those two qualifications are valid only under subsection (2) of the proposed statute because it purports to limit reprosecution as a matter of statutory policy, not as an absolute constitutional bar.

In redefining "offenses” to mean "transaction,” we adopted in Browna novel rule of constitutional law for Oregon at variance with every other American jurisdiction, citing no authority or precedent of constitutional law in Oregon or elsewhere. Because the theory was flawed, its application was troublesome. Indeed, in State v. Boyd, 271 Or 558, 562, 533 P2d 795 (1975), we recognized "the confusion and perplexity which has followed in the wake of our decision in State v. Brown. ” Rather than reconsider that decision in Boyd, however, we formulated a mechanical procedure to attempt to avoid injustice.

In the year following our decision in Brown, the legislature enacted ORS 131.515,1973 Or Laws, ch 836, § 27, but the subsequent case law has consistently focused on the Brownconstitutional doctrine and tended to ignore the statute. Hence, constitutional cases cannot be avoided in the disposition of this case.

STATE V. HAMMANG ANALYZED

A critical issue of this case under either the constitutional or the statutory rule is whether defendant’s former conviction based on his guilty plea bars *833this subsequent prosecution in light of State v. Hammang, supra.There, the defendant’s earlier conviction for theft of a gun was held not to bar prosecution for murder with that gun because the theft conviction was based on the defendant’s guilty plea.6 The rationale of the majority opinion was based on Brown. Two judges dissented on the basis of ORS 131.515(2) and the majority responded by explaining the statute. Thus, Hammangbegins as a constitutional opinion and, without explanatory transition, ends as a statutory one. To determine the application of Hammang to this case and its effect on the continuing validity of Brown, it will be profitable to examine the opinion closely.

The Hammangopinion begins by noting that Brownproscribes multiple prosecutions, but not multiple charges. Only when the prosecution of a charge commences does Brownrequire consolidation of all charges to avoid jeopardy in bar of a future prosecution. 271 Or at 755. Assuming no unreasonable delay, the determination of when to commence prosecution of each charge is for the state. Hence, a guilty plea to one charge cannot be given the effect of restricting the state’s control over initiation of prosecution.7 The opinion goes on to reason that there is no undue harassment by successive prosecution where the first is commenced and adjudicated on defendant’s guilty plea:_

*834"It is trae that a prosecution following a plea of guilty subjects the defendant to two proceedings and two convictions, but the danger of undue harassment seen in State v. Brown is not present because the first proceeding resulting in a guilty plea is initiated by the defendant himself and not by the state. To recognize that defendant could cut off the state’s right to prosecute for other crimes growing out of one transaction by his election to plead guilty to one of the charges would be to make a game out of the double jeopardy principle.” 271 Or at 756.

By treating the Browndoctrine as a policy rule to be applied where the policy requires and not applied where the circumstances do not threaten the danger which the policy is designed to avoid, this court in Hammangdealt with it as something very different than an absolute constitutional bar. The court did not even treat the Browndoctrine as a bar which the defendant waived by his guilty plea.8 Rather, it applied Brownas if it were in the nature of a rule of administration. Theoretically, Brownwas severely undermined to the point of being silently overruled by the theory adopted in Hammang. 9

Justices McAllister and Tongue dissented on the ground that subsequent prosecution should have been barred under ORS 131.515(2) if "both offenses” (note the inconsistency of that plural phrase and the Brownphrase in the singular, the " 'same offense’ ”) 271 Or at 758, were reasonably known to the prosecutor and triable in the same court. They relied upon ORS 131.505(5)(a), which provides that one is prosecuted within the meaning of ORS 131.515(2) if the action "terminates in a conviction upon a plea of guilty.” The dissenters would have remanded for a determination regarding the prosecutor’s knowledge.

*835The majority responded to the statutory argument of the dissent by holding that ORS 131.505 and 131.515 are not contrary to its constitutional reasoning. It pointed out that the dissenters erred by their failure to distinguish between multiple prosecutions arising from the same offense and those arising from the same transaction. That distinction, however, had been eliminated by the "one transaction - one offense equation” of Brown. In so reasoning, the court in Hammangrepudiated the wording change from the proposed statute to the constitutional rule which eliminated that "distinction and formed the very heart of the Brownrationale:

"The position taken by the dissents that ORS 131.505 and 131.515 mandate a different result is based upon the failure to distinguish between cases of multiple proceedings involving a single offense and cases of separate prosecutions of offenses growing out of the same act or transaction. Once a defendant has been adjudged either guilty or not guilty of an offense, additional proceedings based upon the same offense are undoubtedly barred both because of double jeopardy and fundamental notions of res judicata. Such proceedings can achieve no result and are the clearest possible case of harassment. The situation, as we have already said, is entirely different when the double jeopardy doctrine is extended to require joinder of charges growing out of distinct offenses which are factually related. There is no reasonable possibility of harassment in such situations, and there is danger of grave injustice if defendants are allowed to pick the charges for which they may be punished.” (Emphasis added.) 271 Or at 756-57.

In determining the scope of ORS 131.505, the majority recognized, as it had not done in Brown, that subsections (1) and (2) of ORS 131.515 are, respectively, constitutional and legislative:

"* * * The legislature intended in ORS 131.515 to do two distinct things. In subsection (1) they restated the constitution which, up to that time, had been held to prohibit only multiple prosecutions based upon the 'same evidence.’ In subsection (2) they went further, disallowing the separate prosecution of two or more *836offenses growing out of the same criminal episode. * * *” 271 Or at 757.

The majority went on, however, to hold that the legislature intended to apply the guilty plea definition of prosecution in ORS 131.505(5)(a) only to the constitutional rule embodied in subsection (1) and not to the statutory rule of subsection (2). In so doing, and in affirming the conviction, the court necessarily abandoned the wholly constitutional approach of Brownand adopted by application the two-level approach consisting of the traditional "same evidence” constitutional rule augmented legislatively by the "extended protection,” 271 Or at 757, of ORS 131.515(2). After Hammang, there was simply nothing left of the theoretical foundation of Brown.

What, then, is the state of the law in light of ORS 131.505, 131.515, Brownand Hammang? The effect of Hammangwas (a) to abandon the reasoning of Brownas constitutional law, except as it might apply by analogy to ORS 131.515(2), and thereby (b) to return to a division between constitutional and statutory law, and (c) to hold that the termination of a prior charge by a conviction upon a guilty plea would not constitute jeopardy in bar of a subsequent prosecution for another offense committed as a part of the same act or transaction, but to imply that it would bar a subsequent prosecution for the same offense.

APPLICATION OF HAMMANG TO THIS CASE

The majority concludes that because Hammangis a constitutional case and this one is statutory, we need not consider it. They should have observed that we took review to consider the application of Hammangto this case and Hammangis what everybody has been arguing about. I would reach the issue.

The evidence at the hearing indicates that the state intends to prove that defendant was in unlawful possession of both animals at the same time and place. Although the two charges under the same statute, ORS 496.992, are phrased differently to reflect violation of different administrative rules, see OAR 635-65-*837760(8) and 635-65-765(7), both relate to the same public purpose and both involve the same general criminal objective. For that reason, I conclude that the charges are for offenses arising from the same criminal episode as that term is defined by ORS 131.505(4).10 Therefore, the first consideration is the application of the legislative element of the statute, ORS 131.515(2).

A criminal proceeding culminating in a conviction upon a guilty plea is assuredly a "prosecution” as that word is used in common parlance. The dissenters in Hammangargued that such a conviction is also a prosecution under ORS 131.505(5)(a):

"(5) A person is 'prosecuted for an offense’ when he is charged therewith by an accusatory instrument filed in any court of this state or in any court of any political subdivision of this state, and when the action either:

"(a) Terminates in a conviction upon a plea of guilty * *

The majority in Hammangrejected that view. They reasoned that the ORS 131.505(5)(a) definition of prosecution applied only to the constitutional bar in ORS 131.515(1), not to the legislative bar of ORS 131.515(2), for two reasons. First, the commentary to the proposed code, in discussing the criminal episode rule, spoke only of "multiple trials.” Second, the majority inferred that the legislature could not have intended the "absurd result” of allowing a defendant to bar prosecution of related charges by his guilty plea. 271 Or at 757-58.11

*838The two reasons cited by Hammangare not persuasive. First, the reference of the commentary to prosecution by pleas of not guilty and trials does not mean that the statute excludes other prosecutions. Second, the "absurd result” can be avoided other than by giving a strained definition to words of otherwise specific meaning. I would conclude that the words "prosecuted” and "prosecution” as used in ORS 131.515(2) convey their ordinary meaning at least insofar as they include within their meanings convictions based upon guilty pleas. Thus, the definition in ORS 131.505(5)(a) applies to ORS 131.515. Defendant has been separately prosecuted.

The next issue is whether this prosecution is barred by ORS 131.515(1) as a separate prosecution for the same offense. Because of the wording and history of ORS 131.515(1) as set out above, I conclude that the scope of that subsection is coextensive with that of Art I, § 12 of the Oregon Constitution. Therefore, at the least, if the proof of one charge necessarily proves the other charge, then, absent a waiver, a second prosecution is barred. Here, proof of illegal taking of a deer requires evidence of facts different than that which would have been required to prove the charge of illegal possession of an elk. Hence, by the so-called "same evidence” test, see State v. McDonald, supra,there is no former jeopardy for the same offense.

Because this is a separate prosecution for a second offense arising from the same criminal episode and because it could properly have been consolidated for trial with the first prosecution,12 the next consideration under ORS 131.515(2) is whether the facts of the offenses were "reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution.” The word "prosecutor” refers to the district attorney. The clear words of the statutes provide the answer; there is no need to go to the minutes *839of the drafters. The defendant admits that the district attorney did not know of the case at the time of the first proceeding, but he contends that in the prosecution of a minor charge, the policeman is the prosecutor. Defendant’s contention is incorrect in light of ORS 8.650, which provides:

"The district attorney in each county is the public prosecutor therein * *

The word "appropriate” was intended to forestall problems in cases of mixed venue and jurisdiction. It does not operate in the absence of a prosecutor to convert a police officer into the prosecutor. Here, the defendant called the police officer to court and pleaded guilty without the knowledge of the appropriate prosecutor. Hence, the earlier conviction does not bar this prosecution by operation of ORS 131.515(2).

Although the series of opinions discussed above have chipped away at our holding in State v. Brown, I may safely observe that the court retains it primary concern in Brownthat the same evidence test alone may not provide "a realistic limitation on successive prosecutions by the state.” 262 Or at 457. Some broadening of the same evidence test is required. It would be premature, particularly in a separate opinion, to attempt to lay out in a concurring opinion a definitive exposition of the scope of Art I, § 12, but it is appropriate to observe that a basic concept of extended protection is well established in our recent case law regarding multiple prosecution, notwithstanding the precedential misstatement in Brown.

In State v. Cloutier, 286 Or 579, 596 P2d 1278 (1979), we recognized that the manner in which the law deals with a person who commits multiple related offenses does not reflect a single, consistent policy or approach. Rather, separate bodies of statutory and common law have developed independently to deal with each aspect of the one problem. Separate strands of law regulate joinder of counts for indictments, merger or multiplicity of offenses in indictments, joinder for trial, severance for trial, merger of included offenses upon conviction, sentencing for related *840crimes, double jeopardy and successive prosecution for related offenses. All are aspects of the same general problem, but each has been the subject of separate case law development, often without relation to the other aspects. An example of conflicting development is the law of joinder and the law of severance of counts for trial, each of which deals with the opposite side of precisely the same problem. Yet joinder and severance law are in such irreconcilable conflict with each other, see State v. Brown, supra,and State v. Leverich, 269 Or 45, 522 P2d 1390 (1974), that we were able to resolve the conflict only by creation of a mechanical procedure which operates without regard to the rights of the state or the interest of the courts in the efficient administration of justice. State v. Boyd, supra.

With such theoretical fragmentation, one would expect the case law to yield different answers to the same question at different stages of the proceedings (e.g., factually related burglary and attempted theft may be the subject of separate counts, but not of separate sentences). As the survey in Cloutiershows, however, there is a high degree of harmony in the results of our case law and the unifying factor appears to be our consistent intention to effectuate express or inferred legislative intent.

It is fundamental that we look to legislative intent to determine whether conduct constitutes an offense because an offense exists only if it has been statutorily defined. ORS 161.505 acknowledges this simple premise:

"An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law or ordinance of a political subdivision of this state. * * *”

Whether related conduct which offends one statute is one offense or is divisible into more than one offense depends upon the statutory definition of the offense. Sometimes the statutes are explicit. For example, a simultaneous assault upon two persons would be two offenses because ORS 131.505(3) so provides:

*841"When the same conduct or criminal episode, though violating only one statutory provision, results in death, injury, loss or other consequences of two or more victims, and the result is an element of the offense defined, there are as many offenses as there are victims.”

Also, sometimes the statutes specify that each day or other time period of continuing criminal conduct is a separate offense. See Cloutier, 286 Or at 598. The inquiry remains the same if the applicable statutes are not explicit; generality of statutes simply makes the divining of legislative intent an imprecise process, subject to a degree of speculation and policy judgment, but one which we nevertheless perform . Our consistent approach in recent cases has been to look to the legislative formulation of the offense, whether explicit or implicit, to determine at various stages of prosecution whether conduct constitutes one or more offenses.13

In State v. Gratz, 254 Or 474, 461 P2d 829 (1969), we held that an indictment charging one robbery of two people in two counts to be valid on demurrer because the statutory purpose of the offense of robbery was intended to protect individual persons. In State v. Welch, 264 Or 388, 505 P2d 910 (1973), we held that two sentences based on two convictions on two counts for publishing two checks by making one bank deposit of two checks, could not stand because the legislature, had it considered the matter, would *842not have intended more than one punishment; the case was remanded for a single sentence, but the opinion was silent as to the correctness of the multiple counts and multiple convictions. In State v. Gilbert, 281 Or 101, 574 P2d 313 (1978), we reversed the dismissal of indictments for theft by possessing weapons stolen from different owners although defendant had been acquitted on the first such indictment. We held that the first prosecution did not constitute former jeopardy because, we inferred, the legislature intended possession of each weapon to be a separate offense.14 In so doing, we recognized that our task of statutory interpretation often involves policy judgment:

"* * * The intent of the legislature is seldom obvious. Therefore, when the court thinks it would be unfair to permit the defendant’s conduct to be divided into several offenses, the court will not approve the division unless the legislature has clearly provided that it can be divided.” (Citation omitted.) 281 Or at 107.

It is also significant that in Gilbertwe expressly did not imply a view regarding multiple sentences because, as we also pointed out in Cloutier, different legislative and constitutional policies apply to the adjudicative stage and the penal stage of the prosecution.

This review of Gratz, Welch and Gilbertdemonstrates a consistent judicial approach at various stages of the prosecution in determining singularity or multiplicity of offenses arising from violation of one statute; in each case we discerned whether the legislature intended that the conduct constitute one offense or more. We followed that intent, not as a matter of judicial submission to legislative prerogatives, but, rather, because conduct is an offense only if the legislature so defines it. This approach, together with the traditional "same evidence” test, is also the essential basis for the merger doctrine developed by this *843court, see State v. Fish, 282 Or 53, 577 P2d 500 (1978), and State v. Roach, 271 Or 764, 534 P2d 508 (1975), as well as our rules regarding trial of lesser included offenses, see State v. Washington, 273 Or 829, 543 P2d 1058 (1975). They also provide a sound basis, practically and theoretically, for the application of ORS 131.515(1) and Art I, § 12.

Because unlawful possession of an elk and taking of a deer out of season in violation of the same statute are not proved by the same evidence, it must next be determined whether the legislature intended that such conduct be one offense or two. The common victim is the State of Oregon. In a less technical sense, however, ORS 496.992 is intended to protect Oregon’s animal life. These offenses involve distinct acts: the taking of one protected animal and the possession of another, killed at different times and places, albeit on the same day in the same general area. Because the crimes are Class A misdemeanors, ORS 496.992(2), the potential penalty for an offense involving one animal is substantial, but it would be disproportionately light if the unlawful killing of many animals on the same day could only be prosecuted as one offense,15 although this observation might not apply to other protected species such as fish. For all these reasons, I infer that the legislature intended or, had it considered the problem, it would have intended16 that the unlawful conduct involving each animal be a separate offense. Accordingly, I join with the majority to conclude that this is not another prosecution for the same offense and is not barred under ORS 131.515(1) by the former prosecution.

And, conversely, a constitutional double jeopardy challenge has been resolved against the defendant by sole reference to the statutes. See State v. Gilbert, 281 Or 101, 574 P2d 313 (1978).

Subsection (3) deals with lesser included offenses and is not relevant to this case.

Art I, § 12, Or Const provides:

"No person shall be put in jeopardy twice for the same offence [sic] H« ❖ ”

The paragraph continues:

"* * * iphg Oregon Supreme Court recently held that, under the Oregon Constitution, 'a second prosecution is for the "same offense” and prohibited if (1) the charges arise out of the same act or transaction, (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution.’ State v. Brown, [262 Or App at 458], Although the opinion contains some obvious differences in language from that proposed here, the court does adopt the compulsory joinder concept.”

State v. Brown and its interrelationship with this legislation is discussed hereafter in this opinion.

State v. Boyd, 271 Or 558, 563, 533 P2d 795 (1975).

The Court of Appeals had come to the same conclusion because the prosecutor did not have sufficient information for a murder charge against the defendant at the time of the guilty plea to theft. State v. Hammang, 19 Or App 265, 527 P2d 137 (1974). This court did not rely upon that rationale.

"* * * If the state has all the information it needs to prosecute each of the charges arising out of one transaction, there still is no constitutional requirement that the state proceed forthwith to consolidate the charges and begin the prosecution. And the state’s duty to proceed is not enlarged by the circumstances that the defendant unilaterally decides to enter a plea of guilty to one of the charges. Unless the state does more than acquiesce in the entry of the plea of guilty, the state’s options as to how it wishes to proceed remain the same. Thus, after the defendant pleads guilty to one of the charges, the state may thereafter prosecute the defendant for the other charges arising out of the same transaction. There is no duty on the part of the state to inform the defendant before he enters his plea of guilty that other charges arising out of the same transaction may be filed.” 271 Or at 755-56.

Nor would I in this case reach the issue of whether a guilty plea constitutes a waiver of former jeopardy rights and, if so, under what circumstances.

In a footnote, the Hammang opinion acknowledges that Brownis overruled insofar as it applies to former jeopardy based on guilty pleas, because Brownwas also based on a guilty plea, but it goes on to say that the rationale of Brownis not repudiated. 271 Or at 757 n 4. In view of the majority’s reply to the dissenters, however, it is hard to discern much of Brown’s theory that remains.

OKS 131.505(4):

"As used in ORS 131.505 to 131.525, unless the context requires otherwise:

sf: ;{: *

"(4) 'Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.”

The failure to accord its literal meaning to the word "prosecution” is criticized in Cannon, Double Jeopardy in Oregon, 14 Will L J 21, 36 (1977).

The venue exception element of Brownhas also been abandoned in favor of a more workable rule. In State v. Leverich, 269 Or 45, 50-51, 522 P2d 1390 (1974), we held that the Brownphrase "could have been tried in the same court” means "could properly be consolidated.”

Although the dissenting judge in Cloutierdisagreed with the result of our application of the principles in Cloutierand State v. Woolard, 259 Or 232, 484 P2d 314, 485 P2d 1194 (1971), to penal objectives, he endorsed the approach:

"[The pre Woolard rule] was a clear and workable rule and one which was based upon the assumption that it was the prerogative of the legislature to define crimes and to provide for punishment for each of such crimes. ** * *

* * * *

"Consistent with that rule, this court has held that whether a defendant may in fact be convicted and sentenced for two offenses arising out of the same course of conduct depends upon the intent of the legislature in enacting the statutes creating the offenses.” (Citations omitted.) 286 Or at 605, 606-607.

State v. Clark, 46 Or 140, 80 P101 (1905), holding to the contrary for purposes of indictment, was superseded by ORS 131.505(3) and implicitly overruled by Gilbert.

In Gilbert, the defendant’s preliminary election to be tried separately on each charge obviated any problem under ORS 131.515(2).

The information purports to charge a Class C felony, ORS 496.992(3), based on an alleged previous conviction of a game law violation within the past ten years. The previous conviction appears to be the earlier charge of unlawful possession of an elk. The Court of Appeals did not reach defendant’s challenge to the use of that conviction to enhance this charge. In view of my having characterized this charge as a misdemeanor, it is appropriate to also note that I do not believe that the legislature intended that enhancement of the charge be based upon a prior conviction for another offense arising from the same criminal episode. Among other reasons, to hold otherwise would be to gut the defendant’s right to severance of charges. See State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973), State v. Boyd, supra.

See State v. Welch, 264 Or at 394.

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