dissenting. I dissent to Division 2 and to the judgment of conviction as to the lesser crime of carrying a pistol without a license.
A majority of this court in the recent cases of Burns v. State, 127 Ga. App. 828 (195 SE2d 189), and Sturgis v. State, 128 Ga. App. 85 (195 SE2d 682), held that where two offenses allegedly took place on the same date and that where the evidence shows they arose out of the same *543transaction the lesser crime merges with the greater and that a conviction on both counts cannot stand. Burns, supra, and Sturgis, supra, involved heroin and marijuana, and the same rule and standard in narcotic cases must be applied uniformly in all other crimes where there are multiple convictions.
In the case before us, the majority opinion states in Division 2: "While these offenses arose during one transaction, neither is included within the other, for they involve proof of distinct essential elements. The lesser crime, carrying a pistol without a license, has the element of lack of the issuance of a license by the ordinary. Amended Code § 26-2903. This element is not necessary to prove the greater crime of aggravated assault with a deadly weapon.” This is exactly the identical point I unsuccessfully tried to make in Burns and Sturgis, supra. There I pointed out that while the offenses of selling the drugs and in carrying and possession of the drugs without a license (or prescription) arose during one transaction, neither is included within the other for they involve proof of distinct essential elements. The lesser crime, carrying or possessing the narcotics without a license or prescription, has the element of lack of the issuance of a license by drug authorities or a druggist. This element is not necessary to prove the greater crime of the illegal sale of drugs. Gee v. State, 225 Ga. 669 (5) (171 SE2d 291) is still binding on this court as it has been cited by our Supreme Court since the effective date of the present Criminal Code. See Roberts v. State, 228 Ga. 298, 299 (185 SE2d 385). I concur with the holding in Roberts, supra, as the possession of the pistol in that case involved any possession of a pistol, with or without a license, while committing armed robbery is always as a matter of law and fact includable in the greater crime. There were no essential elements in the lesser crime not contained in the greater. There is no way one can commit the greater crime of aggravated assault with a pistol without having *544some kind of possession of the pistol, either legal possession or illegal possession. There is no way one can commit the greater crime of illegally selling narcotics without some kind of possession of narcotics, either legal possession or illegal possession. Actually the type possession ought to be totally immaterial and irrelevant when proving the greater crime. Subsequently, if the type possession is illegal, this is a separate offense, separately punishable and not mergeable and includable with the greater crime. The new Criminal Code gives no indication of lumping all lesser crimes, ones having all essential elements of the greater crime, and ones having different essential elements into one category.
Our new Criminal Code gives several well defined examples of lesser includable crimes. See Code Ann. §§ 26-1004, 26-1303 and 26-1902. Not one example is given where the lesser crime has different essential elements in the lesser not contained in the greater.
One has a constitutional right to bear arms but does not have a similar right to bear or possess marijuana, heroin and narcotics. If we construe Code Ann. § 26-506 so as to forgive extra punishment of the lesser crime of illegally possessing narcotics we must also classify the illegal possession of a pistol as a lesser includable crime and likewise eliminate extra punishment here and in all other multiple type lesser crimes whether or not there exists different essential elements in the lesser crime. Narcotic related crimes account for a large percentage of all crime. The same rule must be applicable to all crimes alike. This includes narcotic crimes.
I would be willing and strongly urge overruling Burns and Sturgis, supra, but until this is done we are bound to uniformly apply this classification of includable crimes to all crimes committed involving lesser crimes arising out of the same transaction.
I respectfully dissent.