Appeal from Circuit Court, Douglas County. Charles S. Woodrich, Judge. No. 39121.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Doyle L. Schiffman, District Attorney, Roseburg, argued the cause for respondent. With him on the brief was Brian R. Barnes, Deputy District Attorney, Roseburg.
Schwab, Chief Judge, and Langtry and Foley, Judges.
Defendant was convicted of both counts of the following indictment:
"LEROY DECHAND is accused by the Grand Jury for the County of Douglas, State of Oregon, by this Indictment of the crimes of COUNT I: BURGLARY IN THE FIRST DEGREE COUNT II: THEFT BY RECEIVING IN THE FIRST DEGREE committed as follows
"The said LEROY DECHAND on or about the 9th day of January A.D. 1972, in the said County of Douglas and State of Oregon, then and there being, did knowingly and unlawfully enter and remain
in a building, to-wit: the Factory A La Go Go, located at 2455 N.E. Diamond Lake Blvd., Roseburg, county and state aforesaid, with the intent to commit a crime, to-wit: theft, and while effecting entry to said building and while in said building said defendant knowingly was armed with burglar tools, to-wit: a hammer and a wrench, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.
"And as part of the same act and transaction set out in Count I herein, the said LEROY DECHAND on or about the 9th day of January, 1972, in the said County of Douglas and State of Oregon, then and there being, did knowingly and unlawfully commit theft by receiving, retaining, concealing and disposing of certain property belonging to another, to-wit: certain liquor including Scotch whiskey, vodka, gin and Irish whiskey, being the property of the Factory A La Go Go, Roseburg, county and state aforesaid, knowing and having good reason to know that this property was the subject of theft, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."
The significant questions presented are: (I) whether the second count is sufficient to charge first degree theft; and (II) whether separate convictions and sentences on both counts are invalid.
There was evidence that defendant burglarized a bar and stole a quantity of liquor therefrom. There was evidence that defendant thereafter sold some of the stolen liquor. It is the state's theory that defendant's activities following the burglary constitute first
degree theft based on ORS 164.055 (1)(c), which provides:
"A person commits the crime of theft in the first degree if, by other than extortion, he commits theft as defined in ORS 164.015; and
"(c) The theft is theft by receiving committed by buying, selling or lending on the security of the property * * *."
Under ORS 164.055 (1)(c) the elements of first degree theft include: (1) that the theft involved was theft by receiving; and (2) that the stolen property was received by buying it, or that the stolen property was sold after being received. The second count of the indictment does allege the theft involved was theft by receiving, but says nothing about the defendant's having sold the stolen property. Is ...