Edge v. State
| Decision Date | 04 February 1992 |
| Docket Number | No. S91A1127,S91A1127 |
| Citation | 261 Ga. 865,414 S.E.2d 463 |
| Parties | EDGE v. STATE. |
| Court | Georgia Supreme Court |
O. Hale Almand, Jr. and Leigh Brogdon, Smith, Hawkins, Almand & Hollingsworth, Macon, for Edge.
Edward D. Lukemire, Dist. Atty., George R. Christian, Dee Brophy, Asst. Dist. Attys., Perry, and Michael J. Bowers, Atty. Gen., Atlanta, for the State.
Shelley S. Howard, Chief Asst. Dist. Atty., Perry.
Thomas A. Cox, Jr., Staff Atty., Atlanta.
Jesse Calvin Edge, Jr., shot and killed his estranged wife, Barbara, with a handgun. He was convicted by a jury of felony murder, voluntary manslaughter, and possession of a firearm during the commission of a crime. He was sentenced to life imprisonment and to a term of years. 1
1. The evidence is sufficient to permit a rational trier of fact to find Edge guilty of voluntary manslaughter and possession of a firearm during the commission of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Edge contends the trial court erred by entering judgment on both verdicts for voluntary manslaughter and felony murder to stand since the basis for both was the same aggravated assault. We agree, and reverse the conviction for felony murder. Under Malone v. State, 238 Ga. 251, 252, 232 S.E.2d 907 (1977), where the evidence would authorize a verdict for either voluntary manslaughter or felony murder, the trial court should instruct the jury on both forms of homicide. However, where the jury renders a verdict for voluntary manslaughter, it cannot also find felony murder based on the same underlying aggravated assault. This can be understood by recognizing the theory of felony murder; that is, that it depends on the transfer or imputation of malice from the mens rea of the felonious assault to the killing. See Kurtz,Criminal Offenses and Defenses in Georgia (3d ed. 1991) p. 251. If the jury finds voluntary manslaughter, it necessarily finds the felonious assault was mitigated by provocation, and committed without the mens rea essential to impute malice to the killing. Thus, the felony of assault in that instance cannot support a felony murder conviction because there is no malice to be transferred. 2
On the other hand, the jury could find (which it did not in this case) that the aggravated assault was done with malice, in which case the assault could support a conviction for felony murder. Id. at 253. Stated another way, if there is but one assault and that assault could form the basis of either felony murder or voluntary manslaughter, a verdict of felony murder may not be returned if the jury finds that the assault is mitigated by provocation and passion. To hold otherwise would eliminate voluntary manslaughter as a separate form of homicide since, in that event, every voluntary manslaughter would also be a felony murder.
Disallowing a felony murder conviction where the underlying assault is found to have been mitigated by provoked passion is a somewhat modified version of the "merger doctrine," which we have considered on previous occasions. Lewis v. State, 260 Ga. 404, 405 n. 2, 396 S.E.2d 212 (1990); see also Baker v. State, 236 Ga. 754, 757, 225 S.E.2d 269 (1976) (). That doctrine, which is the rule in most states, would preclude a felony murder conviction based upon an aggravated assault directed against the person who was killed. In Lewis v. State we noted that the strict liability element of felony murder, which allows the "bootstrapping" of an assault charge to support a felony murder conviction, is unfair in those instances where the killings otherwise could have been reduced, on the ground of mitigation, to manslaughter. People v. Ireland, 450 P.2d 580, 590, 75 Cal.Rptr. 188, 198, 70 Cal.2d 522 (1969).
In determining what, if any modifications should be made to our "strict liability" felony murder rule, we must examine the purpose behind that rule.
The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. [Cit.] The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first-degree murder for any homicide committed in the course thereof.
People v. Burton, 491 P.2d 793, 801, 99 Cal.Rptr. 1, 6 Cal.3d 375, (1971). Instead of adopting the merger rule in toto--which would preclude felony murder based on any aggravated assault by the defendant on the victim--the modified version adopted by this opinion precludes a felony murder conviction only where it would prevent an otherwise warranted verdict of voluntary manslaughter. This result, in our view, answers the concerns...
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