dissenting.
I 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.
Estevez states 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.
In 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.
In Estevez the 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.
Here 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.
The 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.
Estevez held: "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).”
In 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.
I concur with Judge Evans’ dissent, and write this primarily to emphasize my conclusions both that Estevez is 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.
Although 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.
I am authorized to state that Judges Evans and Stolz concur in this dissent.