¶1concurring in part; dissenting in part.
¶2I agree with the majority that the issue here is whether each count alleges an “aggregate transaction” within the meaning of ORS 164.055(1)(a), and that the test is whether the acts alleged in each count are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge. See State v. Barnes, 14 Or App 23, 511 P2d 1235 (1973). I also agree that the trial court should have allowed the demurrer as to the information charging theft from Fred Meyer (case no. C86-03-31287) and as to Count I of the information charging theft from Nordstrom’s (case no. C8603-31293). See State v. Pena, 15 Or App 582, 586, 516 P2d 761 (1973). I disagree, however, with the majority’s disposition of those counts. The majority vacates and remands for sentencing for Theft Two. Without a valid accusatory instrument, there is nothing to try. We should reverse case no. C8603-31287 and Count I of case no. C86-03-31293.
¶3As to Count II of C86-03-31293 and case no. C8603-31288,1 cannot agree with the majority’s holding that the *435remaining counts satisfy the “aggregate transaction” requirement, because the record is inadequate to support that conclusion. A record which shows only that defendant wrote the checks to the same store on the same day is not, to my mind, sufficient to show, as it must, that a complete account of one of the bad check transactions cannot be related without giving details of the others. For example, defendant wrote two checks to Nordstrom’s on the same day. Let us suppose that he wrote one of them just after the store opened, left the store and did not return until several hours later, at which time he wrote the other check. I hardly think that those two acts would be so closely linked in time, place and circumstance that a complete account of one cannot be related without details of the other. Unfortunately, the record does not reveal any of the circumstances surrounding the check transactions; it shows only that defendant wrote two bad checks to Nordstrom’s on the same day. The same problem exists with the allegations of theft from J.C. Penney.
¶4Although the majority cannot get there from here on this record, I nonetheless agree with the result. It is error to disallow a demurrer only if it is apparent on the face of the accusatory instrument that the acts were not part of an aggregate transaction. See State v. Pena, supra, 15 Or App at 584; State v. Clipston, 3 Or App 313, 319-20, 473 P2d 682 (1970). Here, it is not apparent on the face of the informations that the multiple checks to the same stores on the same days were not part of an “aggregate transaction”; indeed, that issue was not even resolved by the evidence at trial. I therefore agree that defendant’s convictions in case no. C86-03-31288 and on the second count in case no. C86-03-31293 should be affirmed.