The appellees are three previously convicted felons who were arrested and whose vehicle was searched (with a warrant), on suspicion of burglary of a certain commercial establishment. In the vehicle were found an amount of marijuana, money wrappers, vending machine keys found later to fit machines in the burglarized premises, a tool box identified by the premises owner as his own, a box containing a large amount of coins; and a loaded .38 caliber Taurus revolver was found concealed under the vehicle dashboard. The three felons were indicted in one count for burglary, in one count for possession of marijuana, and in three counts (one as to each individual) for possession of a firearm by a convicted felon, the previous felony as to each individual being named as a particular burglary. On motion by the appellee felons, the trial court quashed and dismissed the indictments as to possession of a firearm by a convicted felon. Held:
The trial court erred in quashing the three counts of the indictment charging the appellees with “possession of a firearm by a convicted felon.” Code Ann. § 26-506 provides: “(a) When the same cpnduct of an accused may establish . . . more than one crime, the accused may be prosecuted for each crime. . . . (b) . . . the several crimes arising from the same conduct. . . must be prosecuted in a single prosecution except... [that] (c)... the court in the interest of justice may order that one or more of such [acts] be tried separately.” If we grant that the trial court could in its discretion, “in the interest of justice... order that [the charge of possession of firearm by a felon] be tried separately,” the fact remains that this is not what the trial court did; or, at least, if it attempted to do this by quashing and dismissing these indictment counts, it did so on an erroneous legal theory, and must be reversed.
The trial court perceived that the weapon in this case was not related to, i.e., not used in, the other crimes indicted (burglary and
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possession of marijuana) and moreover that the proof of prior convictions placed the appellees’ characters in issue. In
Prather v. State,
The conduct of the felons in this case of riding around in a van with marijuana and a firearm and the fruits and tools of a burglary, “may establish the commission” of all the crimes charged in the indictment counts, Code Ann. § 26-506 (a), and may constitute a continuous series of acts or single scheme or plan. Clemson, supra. These offenses “must be prosecuted in a single prosecution” (Code Ann. § 26-506 (b)) (emphasis supplied). We add that the fact that a necessary element of one of the crimes alleged is conviction of a prior felony does not, of and by itself, authorize the trial court to order a separate trial in the interest of justice (Code Ann. § 26-506 (c)); where a convicted felon commits several crimes in the course of the same conduct, if proof of a prior felony conviction is a necessary element of one of the crimes charged, then so be it. The only justice we perceive to be served by excluding proof of the prior felony (and dismissing the indictment altogether or severing the trial of the offenses) might arise where proof of the accompanying offenses is so *629 uncertain or circumstantial that the verdict as to them is likely to be prejudicially influenced by proof of a prior felony conviction, as may happen in any case where multiple crimes are charged.
The rule that evidence of a prior conviction is not admissible, as putting the defendant’s character in issue, is not an absolute rule. Code Ann. § 38-415 clearly provides that “evidence of prior felony convictions may be admitted in those cases where the same are alleged in the indictment as provided by law.” It is not true, as the trial court ruled in this case, that “the sole purpose [in] including the charge of possession of a firearm by a convicted felon ... would be to put the character of the defendants in issue.” The purpose in including the firearms possession charges with the marijuana and burglary charges is to prosecute appellees for all crimes arising out of the same conduct (Code Ann. § 26-506). The state has the right to do this (Prather, supra; see Ingram, supra); and if one of the elements of the crime charged requires proof of a felony conviction, it is permissible under the evidentiary rule just quoted (Code Ann. § 38-415) and not as an exception thereto. It is more to the point to say that the defendants by their alleged conduct put their own character in issue, and as we say, so be it.
Judgment reversed.