Appeal from Circuit Court, Multnomah County. John C. Beatty, Judge. No. 72-08-2710 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.
Al J. Laue, 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.
Schwab, Chief Judge, and Langtry and Thornton, Judges.
Defendant, upon trial on stipulated facts to the circuit court, was convicted of one count of criminal activity in drugs in violation of ORS 167.207, the pertinent portion of which states:
"(1) A person commits the crime of criminal activity in drugs if he knowingly and unlawfully manufacturers [sic], cultivates, transports, possesses, furnishes, prescribes, administers, dispenses or compounds a narcotic or dangerous drugs."
The issue on appeal involves a question of double jeopardy of the nature dealt with in State v. Brown, 262 Or 442, 497 P2d 1191, rehearing denied (1972).
On July 18, 1972, at approximately 8:20 p.m., Officer Panit of the Portland Police Department met the defendant at 0231 SW Gibbs. After a discussion concerning the purchase of marihuana, defendant offered to sell Panit an ounce of hashish. Panit said that he was interested; defendant walked out of the room and returned shortly thereafter with an aluminum canister containing what defendant represented as an ounce of hashish. Panit stated that he wanted to buy a gram at that time and that he would return later for more.
The next day, July 19, 1972, based on Panit's information that he had observed defendant in possession of an ounce of hashish on the previous day, a
search warrant for 0231 SW Gibbs and defendant's person was issued.
At approximately 8:20 p.m. on the 19th, Panit again contacted the defendant at the Gibbs street residence. At that time he bought two grams of hashish from the same one-ounce supply shown and offered him the night before.
Approximately 20 minutes later, members of the Portland Police Department executed the search warrant. The officers seized the remainder of the hashish contained in the ...