Ealey v. State, 52464
| Citation | 139 Ga.App. 604,229 S.E.2d 86 |
| Decision Date | 08 September 1976 |
| Docket Number | No. 52464,No. 3,52464,3 |
| Court | United States Court of Appeals (Georgia) |
| Parties | J. F. EALEY v. The STATE |
Harrison, Jolles, Miller & Bush, Charles F. Miller, Jr., Augusta, for appellant.
Richard E. Allen, Dist. Atty., James W. Purcell, Asst. Dist. Atty., Augusta, for appellee.
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: (Emphasis 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 S.E.2d 334; Garrett v. State, 133 Ga.App. 564, 211 S.E.2d 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 S.E.2d 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 S.E.2d 135.
2. The defendant attacks the sufficiency of the state's evidence that he entered the home of another 'without authority and with intent to commit a theft.' 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 S.E.2d 770.
However, to support a finding of burglary there must be evidence of 'intent to commit a theft' as was alleged in the indictment. 'The entering of (a building) without authority from the owner or occupant is, itself, a felonious entry under Code Ann. § 26-1601 (Bass v. State, 123 Ga.App. 705, 182 S.E.2d 322); and since there was ample proof of the unauthorized entry, the jury could logically conclude that, having committed one felony, his conduct after entry indicated an intent to commit...
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...is entitled to infer intent to commit theft based on the defendant's conduct following the unauthorized entry. Ealey v. State, 139 Ga.App. 604, 606(2), 229 S.E.2d 86 (1976). As pointed out above, Ms. Haynes testified that Nelson told her he was in her home for an hour before she awoke, and ......
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