Lead Opinion
Appellants were tried before a jury under a three count indictment. Count I alleged that appellants had violated OCGA § 27-3-13 (Code Ann. § 45-511) by hunting game animals from a motor vehicle. Count II alleged a violation of OCGA § 27-3-10 (Code Ann. § 45-509), which provides that it is unlawful to hunt wildlife upon a public road. Count III alleged that appellants had hunted game animals at night with a light exceeding six volts, in violation of OCGA § 27-3-2 (Code Ann § 45-502). The jury returned guilty verdicts as to all three counts.
Each apрellant filed a separate notice of appeal from the judgments of conviction and sentences entered on the guilty verdicts. Thеir appeals present the same question for review. Accordingly, the two appeals will be treated as companion cases for purposes of appellate review.
Appellants do not contest the sufficiency of the evidence to authorize a finding thаt they were hunting game animals at night, upon a public road, with a light exceeding six volts. What appellants do assert is that this evidence would authorize but one conviction because all three crimes for which they were prosecuted were included “as a matter of fact.” Gunter v. State,
“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.” OCGA § 16-1-7 (Code Ann. § 26-506). For purposes of this statute, one crime is nоt included in the other if “ ‘they involve proof
By introducing evidence authоrizing a finding as to the distinct essential elements of the three crimes charged, the state in the instant case met its burden of proving that appellants were conducting their hunting activity in such a manner as to be guilty of three separate and unmerged offenses. Compare Estevez v. State,
Judgments affirmed.
Concurrence Opinion
concurring specially.
In one of the leading cases as to included crimes and merger, State v. Estevez,
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 formеr as a matter of fact; therefore, merger occurred and multiple punishment was barred. Note my dissent on this point in Burns v. State,
In the instant case the evidence required to convict the аppellant 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 occurrenсe 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 wаs 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 eаch 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 bе 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 evidencе 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 evidеnce 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
I reluctantly concur in the judgment only as to all three counts, as there may be a slight difference between the two examples discussed.