Appeal from Circuit Court, Multnomah County. Phillip J. Roth, Judge. No. C-71-06-1706 Cr.
John W. Burgess, Special Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for respondent.
Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.
The defendant was indicted in a two-count indictment charging him with receiving and concealing stolen property contrary to former ORS 165.045. The first count charged that
"* * * on or about the 1st day of June, 1971, in the County of Multnomah, State of Oregon * * * [the defendant] did feloniously receive and conceal an amplifier and one set of stereo earphones, the property of James A. Day * * *,"
the defendant knowing that the property was stolen.
The second count charged that as part of the same act and transaction and on or about the same day, the defendant similarly received and concealed a color television set and a stereo belonging to Richard E. Aubel, the defendant knowing that the property had theretofore been stolen.
Defendant was tried and found guilty of both counts. Thereafter, a motion for new trial was allowed. Prior to his second trial defendant filed a document entitled "DEMURRER OR IN THE ALTERNATIVE A MOTION TO ELECT AND TO STRIKE."
In his demurrer defendant argued:
"In the present case, the crime is one against property, and by the indictment the allegation is that it took place at the same time and place. Therefore,
it is clear that only one crime is alleged, although the indictment purports to allege two separate crimes. For this reason Defendant demurs [to] one of the two counts of the indictment since with the ...