LENT, J.
The issue is whether, under ORS 131.515(2), a conviction on a plea of guilty to unlawful possession of an elk bars a subsequent prosecution of the defendant for unlawfully taking a deer when both animals, freshly killed, had been discovered in plaintiff’s possession at the same time and place.
The historical facts are not disputed. On December 3, 1978, an Oregon State Police officer followed signs of activity into a forested area in Harney County and came upon defendant and two companions in a remote area in possession of an elk and a deer. The defendant was leaning over the dead elk, apparently sawing off the horns. A deer lay nearby. Both animals appeared to have been freshly killed and gutted. Within 30 yards of the scene the officer found the place where the elk had been killed and gutted. The officer followed a blood trail left in the snow where the deer had been dragged for about 100 yards but did not follow the trail to its end because he was losing contact with the defendant and his companions. The officer then cited the three for illegal possession of an elk. He did not cite for the deer because he wished to consult with his superior officers on the matter.
The citation1 ordered defendant to appear on December 5 in the Justice’s Court at Bums in Harney County. Pursuant to the request of defendant, however, he and the officer appeared in that court on December 4, and defendant entered a guilty plea to the charge concerning the elk and was ordered to pay a fine.
Approximately a month later the officer "swore out a felony complaint” against defendant on the basis of the taking of the deer.2 A preliminary hearing was held on this charge in February, 1979, and the defendant was ordered bound over to circuit [816] court. In March, 1979, defendant was charged in circuit court by district attorney’s information of a felony for the taking of the deer. Or Const. Art VTI (Amend.), § 5(5). Upon defendant’s motion the circuit court dismissed on the grounds of former jeopardy, and the State appealed. The Court of Appeals reversed, 43 Or App 567, 603 P2d 1211 (1979), on the basis of State v. Hammang, 271 Or 749, 534 P2d 501 (1975). We there held that a conviction on a guilty plea to a charge of theft did not bar a subsequent prosecution for murder even if both offenses arose out of the same "transaction” and were triable in the same court and even if the prosecutor knew or reasonably should have known of the facts relevant to the murder at the time of the guilty plea to theft.
We allowed defendant’s petition for review, ORS 2.520, 288 Or 527 (1980), to consider whether our decision in Hammang has present validity under ORS 131.505 and 131.515.3 Those sections of the code were not applicable to Hammang’s prosecution although they were discussed in the various opinions in Hammang.
Some attention to the chronology of that case is necessary to point up the manner in which the various opinions treated the role of the statutes. On June 25, 1973, Hammang stole the gun used on that same day to kill another. The homicide was known to the police immediately. On the following day Hammang admitted to the police that at the time of the killing he had been in the car in which the victim was killed, and Hammang accused one English as the killer. On July 2 English was indicted for murder. On August 6 Hammang was convicted on a plea of guilty of the crime of theft of the gun. On December 11 English was convicted of negligent homicide for the killing. On December 21 Hammang was indicted for murder for the same homicide. The indictment alleged [817] that Hammang had acted jointly with English in the shooting of the victim. Hammang’s trial commenced and on March 15,1974, Hammang moved to dismiss on the ground of former jeopardy. The motion was denied and, upon a jury verdict of guilty, he was sentenced to life imprisonment on March 21, 1974.
Hammang appealed, assigning as sole error the denial of his motion. Of the statutes in question, he cited in his brief only ORS 131.505(4), which defines "criminal episode.” The state cited none of those statutes, asserting that they were not applicable because prosecution commenced prior to January 1, 1974. The Court of Appeals stated that the case presented the question whether the two criminal charges "were known or reasonably should have been known to the prosecution within the meaning of the double-jeopardy rule of State v. Brown, 262 Or 442, 497 P2d 1191 (1972).” The Court of Appeals affirmed, finding that there was ample evidence to support the trial court’s implicit finding that the prosecution neither knew nor should have known of Hammang’s participation in the murder at the time he pleaded guilty to theft. State v. Hammang, 19 Or App 265, 527 P2d 137 (1974).
According to the majority opinion, this court allowed review
"in order to consider what level of prosecutorial knowledge of the possibility of two or more charges growing out of the same act or transaction is sufficient to bar a second prosecution under our ban on double jeopardy as expressed in State v. Brown, 262 Or 442, 497 P2d 1191 (1972).”
271 Or at 751. The majority went on to note that in Brown this court had construed Oregon Constitution, Article I, section 12,4 as meaning that a second prosecution is for the same offense and is therefore constitutionally barred if the charges arise out of the same transaction and could have been tried in the same court and if the prosecutor knew or reasonably should [818] have known of the facts relevant to the second charge at the time of the original prosecution. This court further observed that Hammang and the state disagreed as to whether there was the requisite prosecutorial knowledge and whether the theft and murder were part of the same act or transaction.
Having accurately stated the issue as framed by the parties and having stated the purpose of allowing review, the majority proceeded with an opinion which came to grips with neither matter. Rather, the majority distinguished and partly, at least, overruled Brown. The majority discussed the case in terms of the opinion in Brown and held the rale of Brown inapplicable
"because the first proceeding resulting in a guilty plea is initiated by the defendant himself and not by the state.”
271 Or at 756. Having found that the rale of Brown was not applicable to Hammang’s case, the majority concluded:
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LENT, J.
The issue is whether, under ORS 131.515(2), a conviction on a plea of guilty to unlawful possession of an elk bars a subsequent prosecution of the defendant for unlawfully taking a deer when both animals, freshly killed, had been discovered in plaintiff’s possession at the same time and place.
The historical facts are not disputed. On December 3, 1978, an Oregon State Police officer followed signs of activity into a forested area in Harney County and came upon defendant and two companions in a remote area in possession of an elk and a deer. The defendant was leaning over the dead elk, apparently sawing off the horns. A deer lay nearby. Both animals appeared to have been freshly killed and gutted. Within 30 yards of the scene the officer found the place where the elk had been killed and gutted. The officer followed a blood trail left in the snow where the deer had been dragged for about 100 yards but did not follow the trail to its end because he was losing contact with the defendant and his companions. The officer then cited the three for illegal possession of an elk. He did not cite for the deer because he wished to consult with his superior officers on the matter.
The citation1 ordered defendant to appear on December 5 in the Justice’s Court at Bums in Harney County. Pursuant to the request of defendant, however, he and the officer appeared in that court on December 4, and defendant entered a guilty plea to the charge concerning the elk and was ordered to pay a fine.
Approximately a month later the officer "swore out a felony complaint” against defendant on the basis of the taking of the deer.2 A preliminary hearing was held on this charge in February, 1979, and the defendant was ordered bound over to circuit [816] court. In March, 1979, defendant was charged in circuit court by district attorney’s information of a felony for the taking of the deer. Or Const. Art VTI (Amend.), § 5(5). Upon defendant’s motion the circuit court dismissed on the grounds of former jeopardy, and the State appealed. The Court of Appeals reversed, 43 Or App 567, 603 P2d 1211 (1979), on the basis of State v. Hammang, 271 Or 749, 534 P2d 501 (1975). We there held that a conviction on a guilty plea to a charge of theft did not bar a subsequent prosecution for murder even if both offenses arose out of the same "transaction” and were triable in the same court and even if the prosecutor knew or reasonably should have known of the facts relevant to the murder at the time of the guilty plea to theft.
We allowed defendant’s petition for review, ORS 2.520, 288 Or 527 (1980), to consider whether our decision in Hammang has present validity under ORS 131.505 and 131.515.3 Those sections of the code were not applicable to Hammang’s prosecution although they were discussed in the various opinions in Hammang.
Some attention to the chronology of that case is necessary to point up the manner in which the various opinions treated the role of the statutes. On June 25, 1973, Hammang stole the gun used on that same day to kill another. The homicide was known to the police immediately. On the following day Hammang admitted to the police that at the time of the killing he had been in the car in which the victim was killed, and Hammang accused one English as the killer. On July 2 English was indicted for murder. On August 6 Hammang was convicted on a plea of guilty of the crime of theft of the gun. On December 11 English was convicted of negligent homicide for the killing. On December 21 Hammang was indicted for murder for the same homicide. The indictment alleged [817] that Hammang had acted jointly with English in the shooting of the victim. Hammang’s trial commenced and on March 15,1974, Hammang moved to dismiss on the ground of former jeopardy. The motion was denied and, upon a jury verdict of guilty, he was sentenced to life imprisonment on March 21, 1974.
Hammang appealed, assigning as sole error the denial of his motion. Of the statutes in question, he cited in his brief only ORS 131.505(4), which defines "criminal episode.” The state cited none of those statutes, asserting that they were not applicable because prosecution commenced prior to January 1, 1974. The Court of Appeals stated that the case presented the question whether the two criminal charges "were known or reasonably should have been known to the prosecution within the meaning of the double-jeopardy rule of State v. Brown, 262 Or 442, 497 P2d 1191 (1972).” The Court of Appeals affirmed, finding that there was ample evidence to support the trial court’s implicit finding that the prosecution neither knew nor should have known of Hammang’s participation in the murder at the time he pleaded guilty to theft. State v. Hammang, 19 Or App 265, 527 P2d 137 (1974).
According to the majority opinion, this court allowed review
"in order to consider what level of prosecutorial knowledge of the possibility of two or more charges growing out of the same act or transaction is sufficient to bar a second prosecution under our ban on double jeopardy as expressed in State v. Brown, 262 Or 442, 497 P2d 1191 (1972).”
271 Or at 751. The majority went on to note that in Brown this court had construed Oregon Constitution, Article I, section 12,4 as meaning that a second prosecution is for the same offense and is therefore constitutionally barred if the charges arise out of the same transaction and could have been tried in the same court and if the prosecutor knew or reasonably should [818] have known of the facts relevant to the second charge at the time of the original prosecution. This court further observed that Hammang and the state disagreed as to whether there was the requisite prosecutorial knowledge and whether the theft and murder were part of the same act or transaction.
Having accurately stated the issue as framed by the parties and having stated the purpose of allowing review, the majority proceeded with an opinion which came to grips with neither matter. Rather, the majority distinguished and partly, at least, overruled Brown. The majority discussed the case in terms of the opinion in Brown and held the rale of Brown inapplicable
"because the first proceeding resulting in a guilty plea is initiated by the defendant himself and not by the state.”
271 Or at 756. Having found that the rale of Brown was not applicable to Hammang’s case, the majority concluded:
"Since we find that defendant was not entitled to prevail upon his plea of former jeopardy, we need not determine if the theft of the murder weapon and the murder of Syverson constituted a single transaction or whether, if they did, this fact was reasonably known to the prosecutor.”
271 Or at 758.
The majority opinion referred to the statutes only to answer the dissenters’ argument that ORS 131.505 and 131.515, if applicable, would require reversal of Hammang’s conviction. The majority conceded that a "literal” reading of the statutes favors the dissenters’ position, but held that a "literal” reading produced what the majority found to be an "absurd” result. The majority could find no legislative intent to produce the result required by applying the words the legislature actually used and, therefore, refused to hold that Hammang had been "prosecuted for an offense” when he had been charged with theft and that action terminated in his plea of guilty.
[819] In his dissent, Justice McAllister argued that if ORS 131.505 and 131.515 were applicable, their plain words required a finding in Hammang’s favor if it were established that both the theft and murder arose out of the same criminal episode and if both offenses were reasonably known to the prosecutor when the first prosecution was commenced. Justice McAllister concluded that the statutes did not work a change in the rule of Brown and, therefore, both Brown and the policy expressed by the soon to be operative statutes required reversal.
In his separate dissent, Justice Tongue agreed with the majority that the result produced by a literal application of the statutes was "unreasonable” but, since the language of the statutes was clear and unambiguous, that language should be given effect "even though the result is one which the legislature did not intend.” He expressed concern over the policy of a court rejecting the result conceded to flow from the plain words of a statute because that result appears to the court to be unreasonable.
This review of Hammang establishes only that the case is not dispositive of the case at bar, for the discussion in Hammang concerning the statutory law now in effect was nothing but dictum. It remains for the court to determine in the case at bar what effect the statutes have on this case. There is no need to decide this case under either Brown or Hammang, which both predate legislative rules applicable to this case.
The statutes applicable are:
"ORS 131.505. As used in ORS 131.505 to 131.525, unless the context requires otherwise:
"(1) 'Conduct’ and 'offense’[5] have the meaning provided for those terms in ORS 161.085 and 161.505.
[820] "(2) When the same conduct or criminal episode violates two or more statutory provisions, each such violation constitutes a separate and distinct offense.
"(3) 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.
"(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.
"(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; or
"(b) Proceeds to the trial stage and the jury is impaneled and sworn; or
"(c) Proceeds to the trial stage when a judge is the trier of fact and the first witness is sworn.
"(6) There is an 'acquittal’ if the prosecution results in a finding of not guilty by the trier of fact or in a determination that there is insufficient evidence to warrant a conviction.”
"ORS 131.515. Except as provided in ORS 131.525 and 131.535:
"(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.
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Defendant’s position is that the statutes and the rule of Hammang are in conflict and the courts [821] must dispose of his case under the statutes. The state’s position apparently is that Hammang is in point, that this court there anticipated a construction of the statutes and that that construction requires rejection of the plea of former jeopardy.
More specifically, defendant relies upon a claim of immunity from prosecution under ORS 131.515(2).7 The policy underlying that subsection is that there should not be unnecessary separate trials stemming from conduct which constitutes more than one offense.8 The policy is to be effectuated by a rule of compulsory joinder.9 If the prosecutor fails to accomplish that joinder, the sanction for that failure is statutory prohibition of subsequent prosecutions. The subsection is not dependent upon any constitutional text or concept; the subsection is an independent method of preventing prosecutorial harassment of a defendant who has committed multiple offenses in a single criminal episode.
In determining whether this defendant is entitled to the benefit of the statute, we should first inquire whether he has been "prosecuted for an offense” with respect to the elk, for if there was no prosecution there, this prosecution with respect to the deer cannot be the separate prosecution proscribed by the statute.
[822] The statutory scheme, including ORS 131.505(5)(a), is clear. Defendant was prosecuted for the offense of unlawful possession of the elk when he was charged with that offense by an accusatory instrument, namely, the "Oregon Uniform Game * * * Citation and Complaint,” in Justice’s Court in Bums, Oregon, and that action terminated in conviction upon his plea of guilty. ORS 131.005(1) and ORS 131.505(5)(a). Insofar as dictum in our decision in Hammang is to the contrary, it is overruled.
Having determined that defendant was prosecuted for an offense with respect to the elk, we inquire whether all three of the elements necessary to the statutory bar of a separate prosecution exist. If any of the three are not established, the claim of former jeopardy under ORS 131.515(2) must fail. The disposition of this particular case is determined by considering the element of prosecutorial knowledge.
Defendant urges that the "appropriate prosecutor” must mean the police officer. The state contends that the term means the district attorney. We agree with the state’s position. ORS 8.650 provides that the district attorney is the public prosecutor in each county, and ORS 8.660 provides that he shall conduct all prosecutions on behalf of the state except in the prosecution of certain traffic infractions. But is he the "appropriate” prosecutor?
The respective commentaries to the various preliminary drafts of the statute now codified as ORS 131.515(2) use the term "district attorney” and "prosecutor” interchangeably. The matter was specifically addressed at the October 14, 1971, meeting of the Criminal Law Revision Commission, Subcommittee 1. As we have previously noted, the extensive minutes of the Commission and its subcommittees provide a rich source for determination of the drafter’s intent, State v. Garcia, 288 Or 413, 416, 605 P2d 671, 673 (1980). The minutes of the October 14, 1971, meeting reveal:
"Mr. Johnson [then Oregon Attorney General] requested a clarification of the term 'appropriate prosecutor’ as used in subsection (2) and was told by Mr. [823] Gustafson [Reporter for the Former Jeopardy Draft] that this language was taken from the Model Penal Code and meant that if a person committed an offense in County A, the district attorney of that county would be the 'appropriate prosecutor.’ * * *”
In addition, throughout the several minutes of various meetings of the subcommittee and the full commission, one will search in vain to find any other meaning abscribed to the "appropriate prosecutor” other than that of district attorney. Indeed, there is discussion as to whether the district attorney is to be charged with constructive knowledge of what a police officer may actually know. If the commission had any idea that the term "prosecutor” referred to anyone other than a district attorney there would be no reason for such a discussion.
We believe it is clear that the intent of the drafter was to refer to the district attorney10 and that the adjective "appropriate” was concerned with issues of mixed venue or jurisdiction. The "appropriate prosecutor” in this case, therefore, was the district attorney for Harney County.
The question which then arises is whether the prosecution with respect to the elk was "reasonably known” to the prosecutor. Since the trial judge ruled in defendant’s favor on the motion to dismiss, we must assume that he found, as a historical fact, that the several offenses concerning the elk and the deer were "reasonably known” to the district attorney at the time of the commencement of the first prosecution. Compare, Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). An appellate court can reject that finding only if the court can affirmatively say there is no evidence to support the finding. Or Const. Art VII (Amend.), § 3. Defendant concedes that there is no evidence that the district attorney had actual knowledge of the two offenses at the time defendant was prosecuted with respect to the elk.
[824] The adverb "reasonably” requires attention, for it is not clear what meaning was intended by the drafter. Resort to page 20 of the Final Draft and Report of the Criminal Law Revision Commission, November 1972, yields the reason for insertion of that adverb:
"Subsection (2) provides two protections for the prosecutor. The first is that the offenses must be known to the prosecutor. The purpose of this is to prevent the accused from concealing his total criminal activity within a criminal episode from the prosecutor and then asserting double jeopardy if the prosecutor should later discover and proceed against the remaining offenses.
"The Commission discussed the problem of the amount of knowledge that would be necessary on the part of the prosecutor. This raises a difficult issue in that the prosecutor may not have sufficient evidence to prosecute but still have knowledge that the offense exists. This would place the prosecutor in the dilemma of waiting for more evidence before he proceeded against the accused or foregoing the offense that he lacks sufficient evidence on.
"The modifying adverb, 'reasonably,’ was purposely inserted before the word ’known’ to accomplish the above two objectives. Hopefully, this would give the courts the power to determine if under the circumstances the district attorney should have included the offense in the criminal episode and hence in the former prosecution.”
Defendant points to no evidence in the record from which it could be found that the district attorney "reasonably” knew of the offense concerning the deer at the time defendant was prosecuted with respect to the elk. Our own search for such evidence is likewise fruitless. We can, therefore, affirmatively say there is no evidence to support the trial court’s implicit finding of the requisite knowledge on the part of the prosecutor.
Defendant does not rely upon a constitutional argument in his petition for review. State v. Brown and State v. Hammang, both supra, were concerned with the Oregon Constitution. In his petition for review, defendant states:
[825] "* * * Moreover, also unlike the Hammang case, we are not here concerned with the ban on double jeopardy as expressed in State v Brown. We are before this court in this case at this time discussing the ban on double jeopardy as expressed in Oregon Revised Statutes, Chapter 131. ORS 131.515(2) prohibits prosecution seriatim of multiple offenses growing out of the same criminal episode if they are known to the prosecutor at the time of the commencement of the first prosecution and if venue is proper in a single court. * * *”
There is no reason, therefore, to determine if a constitutional argument would be of avail to defendant. By so noting we do not express any opinion as to the merits of such an argument.
It follows that the decision of the Court of Appeals must be affirmed, but for the reasons expressed herein. The case must be remanded to the Court of Appeals to remand it to the circuit court for further proceedings.
Affirmed.