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EALEY v. THE STATE.
52464.
Burglary. Richmond Superior Court. Before Judge Fleming.
DEEN, Presiding Judge.
The defendant appeals from a burglary conviction.
1. Denial of the defendant's motion to dismiss for failure to grant a speedy trial is cited as error. The defendant was first indicted for the burglary here in issue during the January 1975 term but was not brought to trial until March of 1976. During the interim between indictment and subsequent trial the defendant was tried on three separate occasions for other alleged burglaries and assaults; on none of these occasions was the defendant tried for the burglary which resulted in the conviction with which we deal here. It is urged that Code Ann. 26-506 has been violated: "(a) When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime . . . (b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except . . . (c) When two or more crimes are charged as required by subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately." (Emphases supplied.) It is clear that Code Ann. 26-506 (b) requires one prosecution only if the several crimes arise from the "same conduct." The three interim trials for burglary and assault involved different dates and transactions, requiring different proof; they were separate incidents not arising from the "same conduct" within the meaning of Code Ann. 26-506 (b). Howard v. State, 128 Ga. App. 807 (198 SE2d 334); Garrett v. State, 133 Ga. App. 564 (211 SE2d 584). Moreover, had the prosecution for the burglary here in issue been included with any one of the three interim prosecutions, failure to grant a motion to sever would have been reversible error. Booker v. State, 231 Ga. 598 (203 SE2d 194). The record not showing a purposeful, oppressive or prejudicial delay, it was not error to overrule the motion to dismiss. Hughes v. State, 228 Ga. 593 (187 SE2d 135).
The evidence is sufficient to show that the defendant was discovered on the stairs of another's home in the early morning hours by an occupant, that entry had been gained by a window and that when his authority to be there was challenged he fled the premises. This is ample evidence of unauthorized entry. Kent v. State, 128 Ga. App. 132 (195 SE2d 770).
Turning to the evidence here there was evidence that entry was secured through a window. There was evidence that the home contained valuables. There was evidence that when his unauthorized presence was discovered the defendant fled. Upon this evidence the jury was authorized to infer an intent to commit theft. Bowen v. State, 128 Ga. App. 577 (197 SE2d 738).
Harrison, Jolles, Miller & Bush, Charles F. Miller, Jr., for appellant.
SUBMITTED JULY 15, 1976 -- DECIDED SEPTEMBER 8, 1976 -- REHEARING DENIED SEPTEMBER 22, 1976.
Friday May 22 07:51 EDT


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