concurring specially.
In one of the leading cases as to included crimes and merger, State v. Estevez, 232 Ga. 316, 319, 320 (206 SE2d 475) (1974), Justice Undercofler, speaking for a unanimous court, wrote that after the adoption of the 1968 Criminal Code a crime is an included crime and multiple punishment is barred if it is the same as a matter of fact or as *771a matter of law.
In Estevez the court held that illegal possession of drugs and illegal sale of drugs are separate crimes as a matter of law. It further held that the evidence required for conviction as to the illegal sale was the only evidence reflecting the illegal possession. The latter crime was included in the former as a matter of fact; therefore, merger occurred and multiple punishment was barred. Note my dissent on this point in Burns v. State, 127 Ga. App. 828, 830 (195 SE2d 189) (1973), and in Estevez v. State, 130 Ga. App. 215, 218 (202 SE2d 686) (1973). I argued in those cases that one who was convicted of illegal possession and illegal sale of drugs should be punished for two crimes, while another who may have had legal possession and made an illegal sale should be punished for only one crime.
In the instant case the evidence required to convict the appellant of hunting game animals at night with a light exceeding six volts, in violation of OCGA § 27-3-2 (Code Ann. § 45-502), was the only evidence of the simultaneous occurrence or transaction that it was being done from a motor vehicle, violating OCGA § 27-3-13 (Code Ann. § 45-511), and, likewise, the same evidence reflecting that the wildlife was hunted upon a public road in violation of OCGA § 27-3-10 (Code Ann. § 45-509).
In the Supreme Court case of Estevez, sale and possession were separate crimes as a matter of law, and each had an additional essential element distinct from each other as a matter of fact. (Illegal sale of drugs does not always include illegal possession, as one might have a doctor’s prescription; therefore, the possession in that particular example would be legal, while if there were no prescription the possession would be illegal.)
In the case under consideration we have separate crimes as a matter of law, but the evidence sustaining a conviction of hunting game animals at night with a light exceeding six volts was the only evidence also reflecting it done upon a public road and from a motor vehicle.
While the sale of drugs (hunting game animals at night with a light exceeding six volts) may be accomplished without the possession being illegal (may be done without using a motor vehicle and upon a public road), the only evidence of the greater crime was the same as bearing on the lesser as a matter of fact; therefore, it can be articulated that merger obtains. In selling illegal drugs the defendant must have some type of possession of drugs, which may be legal or illegal possession. In hunting game animals at night, there likewise must be a physical presence of the defendant on some space, which presence may be legal or illegal. If he is on his own property, this would be legal presence. If he were trespassing on the property of *772others, this would be illegal presence or illegally occupying space. It could be argued that this defendant’s occupying of space happened to be illegal while committing the illegal act of hunting game animals at night; that is, instead of being on his own property he was in an automobile and on a public road. This added up to committing three crimes, yet the only evidence of the latter two was that which was shown in the evidence as to the greater crime. This question is extremely close as to whether or not the convictions on Counts I and II should have merged in Count III and that, therefore, the first two should be reversed.
I reluctantly concur in the judgment only as to all three counts, as there may be a slight difference between the two examples discussed.