dissenting.
I 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.
Defendant 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.
The 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?
Defendant properly raised this defense and objections in the trial court, and enumerates error *299thereon.
A 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.”
Hence, 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.”
In 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.”
In 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.
The 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.”
See 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.
"'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.’ ”
The 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.
In 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.
I am authorized to state that Presiding Judge Deen and Judge Stolz join in this dissent.