¶1dissenting.
¶2Respectfully, I dissent.
¶3Once again our Court has opted for an unduly harsh interpretation of the double jeopardy principle. We should resist, rather than assist, prosecutorial efforts to break up a single criminal transaction into as many different crimes as possible, thus imposing a greater punishment than would be otherwise authorized. As I stated in my recent dissent in Campbell v. Commonwealth, Ky., 732 S.W.2d 878 (1987):
“The rules of the game, now honored only in the breach, require the prosecutor to carve out and convict for only the most serious offense represented by ‘the same criminal episode.’ American Law Institute, Model Penal Code, Multiple Offenses, § 1.07:
‘Arising out of the same criminal episode’ is meant to include offenses that occur on substantially the same occasion or are motivated by a common purpose or plan and are necessary or incidental to the accomplishment of that purpose or plan.’ Id. at 118-19.”
¶4This present case represents our most glaring misapplication of the double jeopardy principle thus far.
¶5The evidence proved that the accused broke into a drug store and stole a large quantify of pills, including both Schedule III and Schedule IV controlled substances. These pills were found in the appellant’s home the next day when it was searched. Simply because this single trafficking offense involved two different types of pills, the appellant has been found guilty of two separate violations of KRS 218A.140, which makes it a crime to “traffic in any controlled substance.” It would be equally sensible to break this single criminal transaction into 3,765 offenses because a total of 3,765 pills were recovered.
¶6*683There is no provision anywhere in KRS Chapter 218A, Controlled Substances, to the effect that the possession at the same time and place of more than one type of controlled substance constitutes multiple offenses. Absent an explicit statutory mandate, our rule of construction, disregarded of late, is that:
“Doubts in the construction of a penal statute will be resolved in favor of lenity and against a construction that would produce extremely harsh or incongruous results or impose punishments totally disproportionate to the gravity of the offense; so in case of ambiguity the construction will be against turning a single transaction into multiple offenses.” Commonwealth v. Colonial Stores, Inc., Ky., 350 S.W.2d 465, 467 (1961).
¶7In Commonwealth v. Colonial Stores, Inc., supra,the issue was very similar to the present one. The question was whether there was multiple offenses, or a single offense, when a store owner was offering for sale at one time 416 separately wrapped short weighted packages of meat. Just as “offering for sale” at the same time of 416 separate items, each short weighted, constituted but one offense in the Colonial Stores case, so should simultaneous “possession with the intent to sell” of two different types of controlled substances, or 3,765 different pills, at the same time constitute but one offense. The Commonwealth relies for authority on Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1986), and the “Blockburger test,” Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932). These cases involve situations so totally inappo-site to the present situation that they are meaningless for this case. But at least the Commonwealth cites some authority, albeit incorrectly. The majority opinion cites none.
¶8A number of other jurisdictions have considered the present double jeopardy question in cases very similar to our own, and apparently all have reached the opposite conclusion, holding that:
“[T]he simultaneous possession of more than one type of controlled substance, under the circumstances shown on this record, constituted a single offense, and only one sentence should have been imposed. People v. Manning, 71 Ill.2d 132 [15 Ill.Dec. 765], 374 N.E.2d 200, 202 (1978).”
¶9See also State v. Homer, 22 Or.App. 328, 538 P.2d 945 (1975); State v. Butler, 112 N.J.Super. 305, 271 A.2d 17 (1970); and Braden v. United States, 270 F. 441 (8th Cir.1920). The appellant’s Brief is replete with quotations from these cases. It seems to me that our Court should take an equally enlightened view, or at least provide a sound reason for rejecting it. The fact that some of the pills are listed on Schedule III and some on Schedule IV is a fortuitous circumstance and not a sound reason.