¶1dissenting.
¶2I dissent here because I believe we are still confused over the construction of Code Ann. § 26-505 as discussed on the latest and most exhaustive statement by our Supreme Court: State v. Estevez, 232 Ga. 316 (206 SE2d 475), affirming our reversal of a conviction by a full bench decision. It appears to me that the logic of that decision requires a reversal of the present case.
¶3Estevezstates succinctly that Code Ann. § 26-505 (a) (where although two crimes are alleged, there can be only one punishment where all the elements of proof of one crime are necessary to prove the other "as a matter of fact”) relates to the evidence adduced, and subdivision (b) (where the difference between the two crimes charged is that one involves more culpability than the other, as e.g. simple assault and aggravated assault) relates to the offenses charged as a matter of law. The case emphasizes that whereas prior to 1968 the defendant had to show included crimes to be such both as a matter of fact and as a matter of law in seeking single rather than multiple sentences, he now only has to show under (a) that they are the same as a matter of fact (the single transaction test) or as amatter of law (the definition test). If they are included crimes, though they are separate and may be charged and tried in a two-count indictment, only one punishment may be meted out if all elements of one fit into the other either as a matter of fact or as a matter of law.
¶4In this case the defendant was charged in two counts with possessing gambling equipment and with commercial gambling. Gambling equipment is defined as any "device” designed for gambling purposes. The facts of this case as testified to show the defendant possesses *297gambling paraphernalia including dice tables, poker chips, etc. It also shows that when raided these "devices” were being used in the operation of a gambling casino and that gambling was going on at the time. The proof therefore shows a single transaction as a matter of fact, and this transaction includes possession and use for commercial gambling of the proscribed devices.
¶5In Estevezthe defendant was charged with the possession of cocaine and the sale of cocaine. The evidence, as here, showed one sale, of which possession was a component. Although the crimes were separate as a matter of law, the transaction was single as a matter of fact, and only one sentence could be imposed.
¶6Here the possession of the device and the use of the device for commercial gambling, although separate crimes as a matter of law, are shown by the evidence to be a single transaction as a matter of fact. Therefore only one sentence can be imposed.
¶7The last paragraph of the majority opinion states: "Neither of the offenses is a necessary element in and constitutes an essential part of, the other offense... They are in law separate and distinct offenses.” This is true and wipes out Code Ann. § 26-505 (b) which deals with offenses separate as a matter of law. But it does not wipe out § 26-505 (a) because all of the evidence in this case involves the possession and use of the "device” as a single transaction.
¶8Estevezheld: "In the instant case, however, the evidence required to convict of illegal sale was the only evidence showing possession. Therefore, as concluded by the Court of Appeals, the illegal possession was included in the crime of illegal sale as a matter of fact under Code Ann. § 26-505 (a).”
¶9In the case at bar, the evidence required to convict of illegal commercial gambling was the only evidence showing possession of gambling equipment, and the illegal possession is included as a matter of fact in the crime of illegal use.
¶10I concur with Judge Evans’ dissent, and write this primarily to emphasize my conclusions both that Estevezis the controlling authority on the single transaction test and that the possession-cum-use here cannot be *298distinguished from the possession-cum-sale there. See Hibbs v. State, 133 Ga. App. 407 (211 SE2d 24) where possession and sale of marijuana affirmance appears to be inconsistent with Estevez.
¶11Although my view as to merger (see Thomas v. State, 128 Ga. App. 32 (195 SE2d 681); Sullivan v. State, 129 Ga. App. 231 (199 SE2d 373); Reeves v. State, 128 Ga. App. 750 (197 SE2d 843); Burns v. State, 127 Ga. App. 828 (195 SE2d 189); Sturgis v. State, 128 Ga. App. 85 (195 SE2d 682)) was overruled in Estevez, this Supreme Court case is the latest expression and should be followed.
¶12I am authorized to state that Judges Evans and Stolz concur in this dissent.
¶13dissenting.
¶14I dissent as to Division 4 of the majority opinion, which affirms the trial court in allowing two separate convictions to stand, although the evidence in support of each charge was exactly the same.
¶15Defendant was tried in State Court of Richmond County under two separate accusations, tried at the same time, one of which was brought under Code Ann. § 26-2703, and the other being brought under Code Ann. § 26-2707. The first statute above named penalizes "commercial gambling,” that is, the very act of engaging in commercial gambling; while the second statute above named penalizes "possession of gambling devices or equipment.” Evidence was introduced which was sufficient to authorize the jury to determine that defendant was the owner and operator of a commercial gambling house, where gambling devices and equipment were maintained, and where gambling was going on.
¶16The question for determination by this court here is whether defendant could be convicted on two separate charges, under the same evidence, all of which related to the same time and place? Could defendant be convicted of commercial gambling and, at the same time, separately convicted of possession of gambling equipment? Is the latter charge as to possession of gambling equipment, under these circumstances merged into the offense of commercial gambling?
¶17Defendant properly raised this defense and objections in the trial court, and enumerates error *299thereon.
¶18A person may possess gambling devices and equipment without operating a gambling house, for instance, if the raid is made at 6:00 a.m., after all patrons have gone home and the operator has retired. But it is impossible to conceive of the operation of a gambling house without at the same time possessing and having therein gambling devices and equipment. This very situation is dealt with in Code Ann. § 26-506 (a) as follows: "When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if (1) one crime is included in the other, or (2) the crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”
¶19Hence, if one crime is included in the other, the defendant may be prosecuted for each crime, but may not be convicted of more than one of such crimes. It seems quite plain that the crime of possession of gambling equipment merges into the crime of operation of a gambling house, where the evidence relates to one specific time, place, and course of conduct. The majority opinion states that: "Proof of the offense of commercial gambling would not of necessity prove that he was in possession of gambling devices and equipment.” We take violent issue with this assertion. How could the owner of a gambling house, as the evidence showed defendant to be, engage in commercial gambling without possessing gambling devices and equipment? Commercial gambling envisages more than making bets on the outcome of a football game; it folds up and ends when there is no gambling equipment provided by the "house.”
¶20In Wells v. State, 126 Ga. App. 130, 132 (190 SE2d 106), this court held that selling and distributing drugs included the offense of possession of drugs, using the following language: "The indictment shows that the two offenses allegedly took place on the same date. The evidence conclusively shows that defendant’s arrest arose out of a single transaction. According to the State’s witnesses only the drugs sold to the State’s witness Ailiff *300were found to have been in the defendant’s possession. Thus defendant’s conviction of the offense of illegal selling and distributing LSD necessarily included the offense of possessing LSD and vice versa. While it was proper to indict for both offenses, try both offenses together, it was not proper under Code Ann. § 26-506 (a) to convict on both counts of the indictment, and the trial court erred in so charging the jury.”
¶21In Sturgis v. State, 128 Ga. App. 85, 86 (195 SE2d 682), this court held that selling and distributing heroin necessarily included the offense of possession of heroin and reversed the conviction.
¶22The Supreme Court of Georgia, in a very recent decision (May 28, 1974) in State v. Estevez, 232 Ga. 316, 320, makes it abundantly clear that the offense of possession of cocaine merges into the offense of selling cocaine and defendant can not be convicted of both, using this language: "The Court of Appeals in its opinion stated (Hn. 3), 'The defendant contends: "The trial court erred in submitting both counts of the indictment against appellant to the jury where the contraband or evidence allegedly possessed by appellant in Count One... was the same evidence upon which the charge of selling (Count Two) was based, all arising out of the same transaction, in violation of Code Ann. § 26-506 (Ga. L. 1968, pp. 1249, 1267).” With the defendant’s contention we agree.’ This is erroneous. An accused may be prosecuted for each crime arising from the same conduct. The proscription is that he may not be convicted of more than one crime if one crime is included in the other. Code Ann. § 26-506.”
¶23See Ansley v. State, 124 Ga. App. 670, 685 (185 SE2d 562): "In Banks v. State, 150 Ga. 73 (102 SE 519), defendant secured an acquittal of the charge of seduction and at the same term of court the grand jury indicted him for fornication. He filed a plea in bar, alleging that the same transaction was involved. It was held that the trial court erred in striking his plea and 'the offense of seduction necessarily embodies, as an element thereof, the offense of fornication. Seduction cannot be accomplished without sexual intercourse ... If the accused, on the trial for fornication should sustain his plea, he would be entitled to an acquittal.’ In the case of *301Bell v. State, 103 Ga. 397 (2) (30 SE 294, 68 ASR 102), it is held, 'Where a person has been put in legal jeopardy of a conviction of an offense which is a necessary element in and constitutes an essential part of another offense, such jeopardy is a bar to a subsequent prosecution for the latter offense, if founded upon the same act.’ Here, the first offense was assault and battery, and the last one was assault with intent to commit rape. In Jones v. State, 55 Ga. 625 (3), it was held that a defendant who was put in jeopardy under charge of simple larceny could not be tried again for the same offense under the name of burglary. In Copenhaven v. State, 15 Ga. 264 (1), it was held that, 'A conviction upon an indictment for burglary, is a good plea, in bar, on a trial for robbery, if the circumstances of the robbery were put in proof, in order to make out the case for which the prisoner was tried and convicted on the first indictment; because in such case, the robbery constituted a part of the same transaction for which the prisoner was first tried.’ In Gully v. State, 116 Ga. 527, 529 (42 SE 790), the Supreme Court of Georgia held: 'There is also another rule, which declares that if the prosecution under the second indictment involves the same transaction which was referred to in the former indictment, and it was or might have properly been the subject of investigation under that indictment, an acquittal or conviction under the former indictment would be a bar to a prosecution under the last indictment. This rule is sometimes called 'the same-transaction test.’ The latter rule has been the one adopted and generally followed in this State. In Roberts v. State, 14 Ga. 8, Judge Starnes, after stating that there seemed to be some difficulty about applying in all cases the rule known as the same-evidence test, says: 'To avoid any confusion on this subject, we adopt the rule as it is otherwise more generally, and perhaps more accurately, expressed, viz.: that the plea of autrefois acquit or conviction is sufficient whenever the proof shows the second case to be the same transaction with the first.’ The rule thus laid down was applied in the following cases. Holt v. State, 38 Ga. 187; Jones v. State, 55 Ga. 625; Buhler v. State, 64 Ga. 504; Goode v. State, 70 Ga. 752; Knight v. State, 73 Ga. 804; Knox v. State, 89 Ga. 259. See also, in this connection, Crocker v. State, 47 Ga. 568; *302Johnson v. State, 65 Ga. 94 (2); Craig v. State, 108 Ga. 776; McWilliams v. State, 110 Ga. 290.
¶24"'If the two prosecutions really involve the same transaction, the fact that the offense charged in the second indictment is by name a different offense from that which is set forth in the first does not prevent a judgment under the first from being a bar to the second prosecution.’ ”
¶25The majority opinion cites Shelly v. State, 107 Ga. App. 736 (131 SE2d 135), and Smith v. Ault, 230 Ga. 433 (197 SE2d 348), wherein each case holds that the offense of possession of burglary tools is separate and apart from the offense of burglary, and one may be convicted of both at the same time. The distinction is obvious. One may commit a burglary without any tools whatever; but an operator of a commercial gambling house cannot operate without gambling equipment. The majority opinion also cites Roberts v. State, 228 Ga. 298 (185 SE2d 385), which holds that the crimes of armed robbery; aggravated assault with a deadly weapon; possession of firearms during the commission of a crime; and theft of a motorcycle are separate crimes and neither merges with the others. Again, the distinction is that each of these offenses may be committed without reference to the other.
¶26In conclusion, in the present case the offense of "possession of gambling devices and equipment” merged with the offense of "operating a commercial gambling house.” Under Code Ann. § 26-506 (a), conviction of the latter offense precluded a conviction of the former. The state presented the same evidence as to each count, showing the identical conduct by the identical defendant, at the same time and at the same place.
¶27I am authorized to state that Presiding Judge Deen and Judge Stolz join in this dissent.