concurring specially.
While concurring fully with the majority opinion, the divergence of opinions with regard to questions of merger bears further observations.
The case of Estevez v. State, 232 Ga. 316 (206 SE2d 475) (1974), made it clear that merger occurs where one crime is the same as another either as a matter of fact or as a matter of law. “There are two predominant tests which the courts in this country use in determining what is the ‘same offense’ for double-jeopardy purposes. The majority test is known as the ‘same evidence’ test, and the minority test is known as the ‘same transaction’ test. The majority test, the ‘same evidence’ test, has three variants: a ‘required evidence’ or ‘elements of the crime’ variant; an ‘alleged evidence’ or ‘allegations of the indictment’ variant; and an ‘actual evidence’ variant.” Haynes v. State, 249 Ga. 119, 123, 124 (288 SE2d 185) (1982) (Marshall, J., dissenting).
In Estevez v. State, supra, it appears that the Supreme Court looked to the actual evidence adduced at trial to determine whether there was merger. In subsequent cases, however, the Supreme Court also applied an elements of the crime test. See Potts v. State, 241 Ga. 67 (243 SE2d 510) (1978); Stephens v. Hopper, 241 Ga. 596 (247 SE2d 92) (1978) (murder not included in kidnapping with bodily injury because of additional element of malice aforethought). In Haynes v. State, supra, the court returned to an actual evidence test. No decision has yet proclaimed one test as the test, and it is this multiplicity of tests available that produces the confusion and uncertainty in cases involving questions of merger.
In this case, under either the actual evidence test or the elements of the crime test, the offense of aggravated assault upon a peace officer (punishable by 5-20 years’ imprisonment) merged as a matter of fact into the mutiny (punishable by 1-5 years’ imprisonment), as the majority concluded. This result is without question unappealing, but it is correct under the present OCGA §§ 16-1-6, 16-1-7, and the existing case law.
I am authorized to state that Judge Banke joins in this special concurrence.