Appeal from Circuit Court, Multnomah County. Phillip J. Roth, Judge. No. 72-08-2444 Cr.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Schwab, Chief Judge, and Fort and Thornton, Judges.
An Oregon statute permits charging several crimes in a single indictment when they arise from "the same act or transaction." ORS 132.560 (2). Ordinarily a single indictment will lead to a single trial. For double jeopardy purposes, State v. Brown, 262 Or 442, 497 P2d 1191 (1972), requires, in the absence of special circumstances, that separate charges arising from "the same act or transaction" be consolidated for a single trial. Thus, under both ORS 132.560 (2) and Brown, for separate charges to be tried together they must have arisen in a single transaction. The question here presented is: What are the defendant's remedies when it appears there has been a joinder of charges
that is improper because they do not arise from a single transaction?
Defendant and his accomplice, Natividad, embarked upon a four- to six-hour crime spree. They first robbed two men who were together on the street. Then, apparently during another robbery, they killed a man. A knife taken from one of the two victims of the first robbery was the murder weapon. Then they committed theft of some items from a parked automobile.
Defendant was charged in a four-count indictment with two counts of robbery in the second degree, ORS 164.405, murder, ORS 163.115, and theft in the second degree, ORS 164.045. The indictment alleged all crimes were part of the same transaction. Defendant was convicted of all counts and appeals. His principal assignment of error is that a motion for judgment of acquittal should have been granted on the grounds that the crimes charged were not part of the same transaction.
State v. Brown, supra, requires that separate charges arising from the same transaction be joined for trial. Brown did not elaborate on what constitutes a transaction for this purpose. Brown did cite ORS 132.560 (2) for the proposition that the two crimes involved in that case could have been charged in a single indictment. 262 Or at 458, n 30. So we assume that the Supreme Court intended that what constitutes a criminal transaction for purposes of ORS 132.560 (2) also constitutes a criminal transaction for purposes of the Brown rule.
Defining transaction as used in ORS 132.560 (2), in State v. Huennekens, 245 Or 150, 152, 420 P2d 384 (1966), the court stated:
"For our immediate purpose here it is ...