The opinion
*225 TANZER, J.,
dissenting.
I share the perplexity of the majority as we attempt to apply State v. Brown, 262 Or 442 , 497 P2d 1191 (1972), to yet another variant fact situation.
I cannot conclude that the Supreme Court intended the Brown doctrine to compel a result as inappropriate to the ends of justice as this. If so, the doctrine is. constitutional mischief which should be contained and these facts suggest such action.
As far as one can tell from the indictments, theft of a television set by possession and possession of illegal drugs are not a part of the same act and transaction in this case. They are crimes of continuing condition. Absent an allegation to the contrary, each condition can be separately generated by unrelated acts for unrelated purposes in separate manners. The fact that the continuing conditions overlap on the day alleged in the indictments is significant only in that it allows their simultaneous discovery. The fact that two separate crimes were discovered and terminated by the same police transaction does not convert them into one criminal transaction. The dismissal should be reversed.
I therefore dissent.