When appellant was. stopped by the police for driving erratically, a plastic bag сontaining marijuana and several pills was found on the front seat of his car. Charged by accusation with misdemeanor possession of less than one ounce of marijuana, appellаnt entered a guilty plea in the State Court of Spalding County. Appellant was subsequently indicted, tried and convicted for possession of amobarbital and secobarbital, the pills found in the bag with thе marijuana. In the course of that felony prosecution in the Superior Court of Spalding County, appellant entered a plea of former jeopardy based on Code Ann. § 26-506 (b). The trial court rejected that plea. We find that the protection of Code Ann. § 26-506 (b) should have been еxtended to appellant, and we reverse his felony *528 conviction.
“If the several crimes arising from the samе 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 а single prosecution ...” Code Ann. § 26-506 (b). “A prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution . . . resulted in either a conviction or an acquittal, and the subsequent prosecution... was for a crime with which the accused should hаve been charged on the former prosecution . . .” Code Ann. § 26-507 (b) (1).
The Code sections quoted in pertinent part above constitute Georgia’s statutory bar to successive prosecutiоns, the procedural aspect of double jeopardy.
Brock v. State,
The second of the trial court’s grounds for rejecting appellant’s plea of former jeopardy was firmly rejected by this court in
Brock:
“The statute requires only thаt if the several offenses ‘arising from the same conduct... are within the jurisdiction of a single court, thеy must be prosecuted in a single prosecution.’ Code Ann. § 26-506 (b)... All of the known offenses were within the jurisdictiоn of a single court — the superior court. See Code §§ 24-2615,2-3301;
Nobles v. State,
We find the first ground equally incorrect. The state argued at trial and on appeal that the two possession offenses did not arise out of the same conduct because the drugs were different. The state has apparently confused the notion of “same offense” with the notion of “same conduct.” Clearly there werе two offenses here for which appellant could be convicted: misdemeanor pоssession of marijuana and felony possession of amobarbital and secobarbital. But therе was
one
transaction involved; the possession arose out of the same conduct. This situation is аnalogous to that in
State v. Gilder,
Judgment reversed.