dissenting.
I respectfully dissent. I agree with the majority opinion’s statement of the equal access rule as to possession of contraband found in an automobile. Elrod v. State, 128 Ga. App. 250, 251 (1) (196 SE2d 360) (1973). Appellant was charged with possession of cocaine in the taxicab and Loretta Cody, a state witness, testified that at some unknown time in the past she and appellant went to a house where they purchased and used cocaine and heroin. However, she and appellant had never used cocaine or heroin in the taxicab appellant drove, and Cody had never seen appellant in possession of cocaine except on the occasions they had used it together. In Burns v. State, 127 Ga. App. 828, 829 (195 SE2d 189) (1973), we held that the offenses of sale of marijuana and heroin necessarily included possession of marijuana and heroin, but unless such offenses occurred on different occasions the possession offenses merged with the sales, and a defendant cannot be convicted of possession of such substances. Our Supreme Court has also held that the offenses merge under such circumstances. State v. Estevez, 232 Ga. 316, 320 (1) (206 SE2d 475) (1974). In Burns, supra, we stated specifically that under the Criminal Code the doctrine of merger is still the law in this state, and in my opinion, the doctrine would be equally applicable to possession and use of cocaine.
Applying the merger rule to the facts of the instant case, Cody’s testimony that she and appellant used cocaine at some unknown time in the past is not “additional evidence” that appellant possessed cocaine in the taxicab, at the time of this alleged occurrence. This view is supported by Cody’s testimony that she had never seen appellant in possession of cocaine. Since I find no additional evidence to render the equal access rule inoperable under the facts of this case, I would reverse.