The defendant was tried and convicted ona five-count indictment charging (1) criminal attempt with intent to commit burglary, (2) possession of burglаry tools, (3) carrying a concealed weapon, (4) carrying an unlicensed pistol, and (5) possessing a firearm during an attempt to commit a crime. The jury imposed sentences on the three felonies, Counts 1, 2 and 5 and directed the sentences to be served consecutively. The judge imposed sentences on the misdemeanor counts, 3 and 4, and ordered each sentence to run consecutively upon the completion of the sentence on the prior count, and in addition required "all sentences imposed on the Defendant this date will be served consecutively to any sentences the Defendant is presently serving from any оther Courts.” Defendant enumerates as error that Count 1 — alleging criminal attempt, "did not sufficiently specify a specific crime” and that if Count 1 was fatally defective then there could be no conviction under Count 5 — possessing a firearm during an attempt to commit a crime. Defendant also contests the imposition of sentences imposed in this case to run consecutively to a sеntence in another court that he is presently serving because the jury did not recommend that the sentences under this indictment be served consecutively to the prior sentence. Defendant also enumerates as error the general grounds on Counts 1 and *683 5. Held:
1. One accused of crime has a right, if he demands it by timely demurrer, to have an accusation perfect in form and substance.
Harris v. State,
Every indictment or accusation shall be deemed sufficiently technical and correct which states the offense in the terms of the Code or so plainly that the nature of the offense charged may be easily understood by the jury. Code § 27-701. Count 1 conformed substantiаlly to the essential elements of the offense enumerated in the Criminal Code of Georgia, § 26-1001 (Code Ann. § 26-1001; Ga. L. 1968, pp. 1249, 1274). A fair reading of the count reveals that the jury should have had no difficulty in understanding the clear and unambiguous language. The indictment is sufficient to withstand a broаdside charge at this level. If the defendant desires to contest the sufficiency of an indictment, he should invoke his rights at the appropriate time — prior to entry of the verdict.
Davis v. State,
2. As the enumeration of error regarding Count 5 was based on the alleged defect in Cоunt 1, there being no defect, there is no error as to Count 5.
3. We find no merit to the allegation of the general grounds of error as tо Counts 1 and 5.
4. The defendant was serving a prior sentence adjudged in another court when sentenced by this court. As this trial was held prior to the effective date of the new criminal procedure authorizing sentencing by the judge for all offenses (Ga. L. 1974, p. 352; Code Ann. § 27-2301), the juiy rеturned sentences on the felony counts, 1,2 and 5 and recommended "that all three sentences run *684 consecutively.” The judge imposed sentence upon the remaining misdemeanor counts, 3 and 4, and provided that each sentence would "be computed from the expiration of the sentence in” the preceding count. In addition, he provided for all sentences to be served "consecutively to any sentences Defendant is presently serving from any other Courts.” Defendant contends it is error for sentenсes adjudged by this court to run consecutively to a sentence of another court if the jury did not so provide in their sentence.
Cоde Ann. § 27-2510 (Ga. L. 1956, pp. 161, 168 (1964, p. 494)) provides that where an accused is convicted on more than one count and sentenced to imprisonment, such sentences shall be served concurrently unless otherwise expressly provided therein. It also states that if an aсcused is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, such sentences shall be served concurrently unless expressly provided therein.
Our Supreme Court, in
Wade v. State,
Our courts have interpreted
Wade
and
Creamer
as holding that where a jury is silent on the question of concurrent or consecutive sentences or where they do not specify that the sentences will run consecutively to each count or to a sentence presently being served in another court, then the sentences will run concurrently.
Scott v. State,
133 Ga. App.466, 468 (
Accordingly, as the jury wаs silent as to whether the sentence imposed by them in this trial should run consecutively to any sentence presently being served under another conviction, that portion of the sentence is illegal. Conversely, the judge was authorized to require the sentencе he imposed to be served consecutively to the sentences imposed by the jury on the felony counts and for those sentеnces to be served consecutively to any sentence the defendant was presently serving. Thus, that portion of the sentenсe is legal.
The judgment of conviction is affirmed but we remand for resentencing in accordance with the verdict of the jury and this decision.
Judgment affirmed in part and reversed in part, with direction.