dissenting.
Although there was but one victim, appellant was indicted and tried for, and convicted of three separate crimes: malice murder; felony murder while in the commission of an aggravated assault; and, aggravated assault. As the majority correctly notes in Division 1, the evidence authorized a finding that appellant committed all three crimes. The trial court, however, entered judgments of conviction only as to the felony murder count and the aggravated assault count. Appellant does not enumerate as error the trial court’s entry of judgments of conviction as to these two counts. Nevertheless, the majority has taken it upon itself to address this issue in Division 2 of its opinion, wherein it concludes that it was error to fail to merge the aggravated assault count into the felony murder count. I agree that there was error committed in this case. I do not, however, agree that that error was the trial court’s failure to have merged the aggravated assault count into the felony murder count. In my opinion, the trial court’s only error was in entering a judgment of conviction on the felony murder count rather than on the malice murder count.
As stated in footnote 2, the premise of the majority’s holding is that it was not “reversible error as a matter of law for the trial court here to have ‘merged’ the malice murder into the felony murder conviction, [and] the felony murder conviction and sentence thereon stand.” (Emphasis supplied.) To the contrary, however, it was reversible error for the trial court to have merged the malice murder into the felony murder conviction, and the felony murder conviction and sentence thereon cannot stand. Malice murder and felony murder were alternative counts of the indictment. Where, as here, valid guilty verdicts are returned on both alternative counts of malice and felony murder, the principle of merger has no applicability whatsoever. In such circumstances, the alternative felony murder count is deemed to be “vacated by operation of OCGA § 16-1-7. Thus, there is no felony murder count into which the underlying felony can merge, since the felony murder conviction has been statutorily vacated.” Malcolm v. State, 263 Ga. 369, 373 (5) (434 SE2d 479) (1993). The majority opinion ignores this holding in Malcolm, which was unanimously decided by this Court less than a year and a half ago. See Hall v. Hopper, 234 Ga. 625 (3) (216 SE2d 839) (1975). See also Grissom v. Gleason, 262 Ga. 374, 378 (418 SE2d 27) (1992) (Justice Benham’s special concurrence).
It follows that, in this case, the trial court first should have determined whether the evidence authorized the guilty verdict as to the malice murder count. Since the evidence in that regard was sufficient, it would have been
proper for the trial court to treat the felony murder count as *5merely surplusage and then to proceed to determine whether the underlying felony did or did not merge, as a matter of fact, into the malice murder count. [Cits.]
Malcolm v. State, supra at 373 (5). Here, this procedure was not followed by the trial court, with the result that a judgment of conviction was erroneously entered on the “surplusage” felony murder count rather than correctly entered on the viable malice murder count. Thus, it is my opinion that the majority erroneously affirms the judgment of conviction on the felony murder count and incorrectly fails to direct that a judgment of conviction be entered on the valid malice murder count.
As to the question of whether the aggravated assault count merged as a matter of fact into the valid malice murder count, the record shows that the former count was alleged in terms of appellant’s “cutting and stabbing [the victim] with a knife, a deadly weapon. . . .” Compare Griffin v. State, 257 Ga. 148, 150 (6) (356 SE2d 209) (1987). Accordingly, resolution of the merger issue in this case is dependent upon whether the evidence used to prove that appellant perpetrated this alleged aggravated assault was also used to establish that he had committed the crime of malice murder. Malcolm v. State, supra at 374 (5).
There was evidence of appellant’s commission of two successive aggravated assaults, each of which was separate and distinct from the other and only one of which caused the death of the victim. See Knight v. State, 190 Ga. App. 87, 88 (2) (378 SE2d 373) (1989); Watson v. State, 178 Ga. App. 778, 780 (2) (344 SE2d 667) (1986). Compare Malcolm v. State, supra at 374 (5); Montes v. State, 262 Ga. 473, 475 (1) (421 SE2d 710) (1992) (finding merger where there was “a series of shots fired in quick succession . ..”). The jury was authorized to find that appellant first chased and stabbed the victim in the hands and that this particular aggravated assault was complete when appellant dropped the knife. At that time, the victim attempted to flee to safety. Had appellant stopped at that point, he would have committed only a non-fatal aggravated assault. However, he persisted, retrieving the knife and chasing the fleeing victim. He then perpetrated yet another aggravated assault which was completed only when he stabbed the victim fatally in the chest. This second fatal aggravated assault was accomplished by a series of stab wounds inflicted in quick succession and, as such, merged into the malice murder. Malcolm v. State, supra; Montes v. State, supra. The first non-fatal aggravated assault, however, is a sufficient predicate for a separate conviction. See Grace v. State, 262 Ga. 746, 747 (2) (425 SE2d 865) (1993) (distinguishing Montes v. State, supra). See also Knight v. State, supra; Watson v. State, supra.
*6Decided February 13, 1995. Christopher J. McFadden, for appellant. Lewis R. Slaton, District Attorney, Herman L. Sloan, Suzanne W. Ockleberry, Ronnie E. Dixon, Rebecca A. Keel, Assistant District Attorneys, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Marla-Deen Brooks, Assistant Attorney General, for appellee.As the separate and distinct non-fatal aggravated assault was not established by the same but less than all of the facts required to establish the offense of murder, it follows that that offense would not be included in the malice murder conviction and that the separate conviction and sentence for the aggravated assault of the murder victim must be allowed to stand. Accordingly, I respectfully dissent to the majority’s holding that the valid judgment of conviction of aggravated assault be vacated.
I am authorized to state that Presiding Justice Benham joins in this dissent.