dissenting.
' The majority opinion reaches the conclusion that Objections to the introduction of evidence at a criminal trial, on the grounds that the evidence was obtained *774by an unreasonable search and seizure, may be properly overruled, although there is insufficient foundation in the record of the trial to establish the admissibility of the evidence. The justification is that a motion to suppress the evidence upon the same grounds was overruled at a pretrial hearing. The holding assumes that a record was made of the pretrial hearing although that fact does not appear. The majority opinion also places upon the defendant the burden of making the pretrial record a part of the record of the trial.
In State v. Smith, 184 Neb. 363, 167 N. W. 2d 568, this court held that the overruling of a motion to suppress under section 29-822, R. R. S. 1943, does not preclude objections to the introduction of evidence at the trial on the ground that it was obtained by an unreasonable search, nor does the overruling of such a pretrial motion to suppress constitute a waiver of the right to object to the introduction of the evidence at the trial. The problem then becomes, one of determining who has the burden of establishing from the record of the trial either that the evidence was or was not obtained by an unreasonable search and seizure. It must be remembered too that the search here was a warrantless search, and that unless some of the evidence from the pretrial hearing on the motion to suppress is made a part of the record at trial, there was apparently a presumptively unreasonable search, if we go on the record alone. It must be noted too that the trial was conducted by a different judge than the one who conducted the pretrial hearing on the motion to suppress. It would have been a very simple matter for the State to have moved the trial court to take judicial notice of the evidence taken at the pretrial suppression hearing or make the evidence a part of the trial record if such evidence was reported. If it was not reported, there could be all sorts of difficulty in *775laying the necessary foundation to establish that the warrantless search here was reasonable.
Courts have reached all sorts of results in cases like this. It is obvious that an appellate court is placed in an extremely difficult position when it must determine from the record of a trial whether or not an objection to the introduction of evidence was properly overruled when the foundation for the ruling does not appear in the evidence of the trial, and was not made a part of the evidence by anyone. Some courts have solved the issue as the majority opinion does, by presuming in the absence of a record that the issue was properly decided at the suppression hearing. See State v. Kelly, 99 Ariz. 136, 407 P. 2d 95. Other courts have ordered the record on their own motion. See, People v. Dunn, 50 Mich. App, 529, 213 N. W. 2d 832; State v. Fetters, 510 P. 2d 1 (Mont., 1973); State v. Michaels, 60 Wash. 2d 638, 374 P. 2d 989. Federal courts have reached varying results on the issue but have tended to take action on their own motion to secure the record of the pretrial hearing and make it a part of the record on appeal. For example, in Gatewood v. United States, 209 F. 2d 789 (1953), the court recognized the principle adopted by the majority opinion in this case that the party appealing must make sure the transcript is complete on an appeal. On its own motion the court sought the record on the ground that the pretrial hearing on the search and seizure issue was of vital significance to the appeal and was actually a part of the trial. In Turk v. United States, 429 F. 2d 1327 (8th Cir., 1970), the court stated that in the interest of justice the court, on its own motion, could order the record in order to review the issue of probable cause for the search. See, also, Washington v. United States, 401 F. 2d 915.
The Nebraska statutory scheme was not intended to reduce or increase the amount of foundation evidence *776necessary to support the admission of evidence at á criminal trial over an objection on the ground that it was obtained by an unreasonable search and seizure. It was instead designed to expedite determination- of such issues before trial and prevent surprise and delay at the time of trial. Although the burden rests on the prosecution to prove the defendant guilty beyond a reasonable doubt, and to prove that guilt by evidence properly admitted, .the majority opinion here holds that the admission of evidence may be determined on the basis of something outside the trial record, and never admitted in evidence at trial. It also holds that if the defendant wants the ruling on an objection to admission of evidence at trial reviewed, he must not only bring up the full trial record, but he also must see to it that the evidence at a pretrial suppression hearing is included as a part of the bill of exceptions of the trial. In these cases the defendants requested “a complete Bill of Exceptions in the above-entitled cause including the trial, same to contain all evidence offered and received, for the purpose of a review of the conviction and sentence in said cause by the Supreme Court of the State of Nebraska.” The reporter has certified that the bill of exceptions is “correct and complete” in accordance with the praecipe and our rules.
There ought to be a far more practical answer to the problems of appellate review of rulings made at a pretrial hearing on a motion to suppress. Wherever it becomes necessary, the court ought to obtain the record on its own motion in the'interests of justice.
The majority opinion also holds that the separate charges against the two defendants here- were properly consolidated for the purpose of trial, and that the joint trial fails to establish any possible prejudice. Section 29-2002(2), R. R. S. 1943, provides in part: “Two or more defendants may be charged in the same indictment, information, or complaint if they are alleged to *777have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.”
Subsection (3) of that section authorizes joint trials if the offense, and the defendants, if there are more than one, could have been joined in a single indictment, information, or complaint.
Here the defendant Pope was charged with two counts of possession of a controlled substance with intent to deliver. The acts and the crime with which he was charged occurred in a house at 2534 North 16th Street, Omaha, Nebraska, and he was the only one present. The defendant Kilgore was also charged with possession of controlled substances with intent to deliver. The acts and the crime with which she was charged occurred in an automobile near 28th and Bristol Streets in Omaha, Nebraska, and at an earlier time than the Pope crime. Kilgore was the only person in the automobile. There is no proof in the trial record that the two defendants in the two separate crimes are husband and wife, and in each case the individual defendant was the only person at the scene of the arrest and was in personal possession of the illegal substances. No constructive possession is involved. There was no charge or allegation that either of the two defendants was a principal or aider or abettor in the offenses charged against the other defendant, and the jury was specifically instructed that it must separately consider the guilt of each defendant and that evidence relating to one should not be considered against the other.
The Nebraska statute involving joinder is substantially similar to Rule 8(b) of the Federal Rules of Criminal Procedure. Two or more defendants may be jointly charged in the same indictment if both defendants participated in the same act or transaction constituting the offense or offenses charged^ In interpreting the federal rule, courts have repeatedly held that *778the trial court must first establish that the crimes for which the defendants are charged arose out of the same act or transaction. See, Ingram v. United States, 272 F. 2d 567; Bridgman v. United States, 183 F. 2d 750. See, also, Dove v. Superior Court, 39 Cal. App. 3d 960, 114 Cal. Rptr. 889. In that case, as in this one, illicit substances were involved. One sale was made on November 5th by the wife. A second sale was made by the husband on November 15th, both to the same undercover agent and both from the same residence. The State contended that a joint trial was permissible because the sales were made from the same location and the defendants were living together. The court held that joint trials were improper, stating: “The potential for prejudice to each defendant in this case lies in the very elements on which the People rely: that defendants are married and living together and that the sales were made from the same residence. The vice inherent in joining defendants in this situation lies in the danger of a conviction based on evidence relevant only to the charge against the co-defendant.”
In the cases now before this court, presumably because of the absence of the evidence at the pretrial hearing, there is no proper proof that the separate defendants were married and living together in the residence. The separate crimes with which each of these two separate defendants was charged occurred at different times and in different places. The acts or transactions were not even in the same house or the same vehicle. The majority opinion here seems to assume that the two separate crimes here are the same act or transaction, simply because they are the same kind of a crime. The majority opinion states: “There is evidence in the record to indicate a common scheme or plan on the part of these two defendants to distribute drugs illegally.” But the defendants here are not charged with distributing drugs illegally. They *779are each charged with the separate crime of possession of controlled substances with intent to deliver, each at a separate location and each in personal possession. The statute requires that severance for separate trial be granted in such cases. The potential for prejudice is apparent and the evidence to establish the two separate crimes of the two separate defendants was utterly different. The motion for severance was clearly proper and should have been granted.