Hubеrt Allen Dutton was indicted by separate bills for the offense of murder and for the offense of burglary. He pleaded not guilty and elected to have the two indictments tried togеther. The jury returned separate verdicts, finding him guilty of murder with a recommendation of mercy and finding him guilty of the offense of burglary and fixing his punishment at five years imprisonment. He was sentenced to life imrpisonment on the murder conviction and to serve five years on the burglary conviction. He filed a motion for a new trial which, as amended, was overruled, and he appealed from the judgments of conviction, from the sentences and from the order overruling his motion for a new trial.
1. The accused made a motion to suppress certain physical evidence which he alleged was obtained by an illegal search. That motion was overruled and that judgment forms the basis for appellаnt’s first ground of enumerated error. Not long after the burglary was alleged to have been committed, accused and two companions were apprehended by рolice officers who had set up a road block in the outskirts of Cornelia. The accused was driving the 1965 Chrysler automobile in which the parties were riding. By the use of flashlights the оfficers were able to observe on the seats and on the floorboard of the automobile two shotguns and numerous items of mer
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chandise. Based on information obtained by communication with the police in Hall County the Cornelia police detained appellant and his companions and carried them to the policе station in Cornelia. One of the police officers drove the Chrysler to the police station in Cornelia. Sometime after the arrival at the police statiоn in Cornelia and after the accused and his companions had been placed under arrest, a search was made of the automobile where the evidenсe in question was recovered. No warrant was obtained for this search. However, it appears that the automobile was a stolen automobile and was not the property of accused, nor was the accused driving the same with the permission of the owner or with the permission of anyone entitled to the possession of thе automobile. Under these circumstances, the accused had no standing to invoke constitutional guarantees against its search, even if the same should apply tо the search of an automobile and he cannot invoke those guarantees so as to exclude the evidence in question.
Roach v. State,
2. Appellant contends that the court erred in denying his motion for a continuance. The sole basis upon which he sought a continuance was that there had been a large amount of newspaper publicity concerning the crime of which the accused was charged and that this had so inflamed the populace of Hall County that it was impossible for him to obtain a fair and impartial jury to try his case. A motion for a continuance is addressed to the sound discretion of the trial judge, and the refusal to grant a continuanсe will not be disturbed by the appellate courts unless it clearly appears that the judge
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abused his discretion in this regard.
Moore v. State,
3. In ground 3 of appellant’s enumeration of errors he contends that the court erred in failing to charge without
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request that the jury might convict the defendant of conspiracy to commit the crime of murder and the crime of burglary. There is no merit in this contention. The evidence presentеd by the State showed without dispute that both of these crimes had been committed. It also showed that the accused was apprehended while driving an automobile wherеin much, if not all, of the merchandise taken in the burglary was found after he was stopped and the automobile searched. The defendant did not deny in his unsworn statement that these crimes had been committed, but merely contended that they were committed by his companions, without his foreknowledge, and that after he learned from them when they returned to the automobile that they had been committed he began to plan to escape from their company. Under all the facts proved by the State and admitted by the defendant in his statement, the jury was authorized to find that the defendant was a party to the crime as defined in
Code Ann.
§ 26-801. While it may be that conspiracy as defined in
Code Ann.
§ 26-3201 is a lesser included offense in any indictment charging the commission of a crime, a matter which we are not called upon to decide here, it clearly is merged into the greater crime where the evidence shows without dispute that the crime charged was actually committed, or that all of the essential acts constituting the crime were committed. The evidence here showed without disputе the crime to have been complete and the omission to charge on conspiracy was not error. See
Kelsey v. State,
4. Assuming, but not deciding, that where the appellant, who had been indicted on two felony charges, to wit: murder and burglary, elected to have the two charges tried together, he was entitled to more than 20 peremptory challenges of jurors, where the record also shows *854 that in selecting the jury the accused used only 18 of the 20 peremptory challenges allowed him by the court, the failure to allow him additional challenges could not have been harmful or reversible error. None of the cases cited and relied on by the appellant requires a different ruling.
5. The final contention of the appellant relates to the sufficiency of the evidence to support the verdict. Without detailing the evidence it is sufficient to say that it showed that аfter the burglary and killing were reported to the police an all points bulletin was issued for the suspects and a short time later the defendant was apprehended оn the outskirts of Cornelia, Georgia, not more than 40 miles from the scene of the crime, driving an automobile wherein was found much, if not all, of the merchandise taken in the burglary. Thе defendant denied having participated in the actual entry to the burgled premises, but it was a question for the jury as to whether he was a party to the crime within the definition embodied in Code Ann. § 26-801 so as to be chargeable for its commission. The evidence was clearly sufficient to authorize the verdict of guilty.
Judgment affirmed.