Appeal from Circuit Court, Lane County. Douglas R. Spencer, Judge. Nos. 72-0135 & 72-0136.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John W. Burgess, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Foley, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant appeals from convictions by jury on two indictments, one for selling narcotics and one for selling dangerous drugs, which were consolidated for trial by the court on its own motion. Defendant urges that it was error for the court to deny him separate trials.
Defendant was charged in separate indictments, one with illegal sale on December 17, 1971 of the narcotic drug marihuana to Rudy M. Mauch and in the other illegal sale on December 17, 1971 of the dangerous drug amphetamine to Steven A. Cain. There
was nothing in either indictment indicating the crimes were part of one act or transaction.
A judge of the Lane County Circuit Court on his own motion consolidated the cases for trial by an order which read in pertinent part:
"THIS MATTER coming on upon the Court's own motion, and it appearing that the trial of the above entitled cases should be consolidated, subject to statute,
"* * * IT IS SO ORDERED."
Defendant thereafter moved for separate trials of the cases on the ground there was "no statutory provision or authority" for consolidating them for trial. Thereafter another circuit judge denied the motion for separate trials and at commencement of the trial of the consolidated cases, presided over by yet another circuit judge, the defendant renewed his motion for separate trials. There for the first time he gave as an additional reason for separate trials that he desired to testify in the narcotic drug (marihuana) case and desired not to testify in the dangerous drug (amphetamine) case. He told the court that if the cases were tried jointly he would be forced to incriminate himself as to the case in which he did not testify. The judge then inquired of defendant if he had raised this additional reason for separate trials before the judge who had previously denied the motion for separate trials. Counsel responded that he had not because he had not ...