Malone v. State
| Decision Date | 27 January 1977 |
| Docket Number | No. 31539,31539 |
| Citation | 238 Ga. 251,232 S.E.2d 907 |
| Parties | Van Joseph MALONE v. The STATE. |
| Court | Georgia Supreme Court |
Adams, O'Neal, Hemingway, Kaplan, Stone & Brown, Manley F. Brown, H. T. O'Neal, Jr., Macon, for appellant.
Fred M. Hasty, Dist. Atty., Walker P. Johnson, Jr., Asst. Dist. Atty., Macon, for appellee.
We granted certiorari in this case to consider whether Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976), this court's recent opinion construing Georgia's homicide statutes with respect to felony murder issues, precludes a charge on voluntary manslaughter in a felony murder trial. It does not.
Malone, who has not yet been tried, was indicted for malice murder and felony murder in the commission of an aggravated assault. The Court of Appeals shortly after our Baker decision reversed the lower court, which had sustained Malone's demurrer to the indictment on the ground that a death in the course of an aggravated assault could not be felony murder. Malone argues on certiorari that we should reconsider and renounce Baker.
An argument strongly urged by Malone is that under Baker the state of mind with which the aggravated assault was committed becomes irrelevant and any resulting death is felony murder; therefore Baker disallows a charge on voluntary manslaughter in a felony murder trial. This argument is not correct. As the concurring opinion in Baker pointed out, we had no question there, under the evidence, of a voluntary manslaughter offense. Here we do.
With respect to instructions given the jury, voluntary manslaughter is a lesser included offense of felony murder, as we read Code Ann. §§ 26-1101(b) and 26-505, because an act done in passion involves a less culpable mental state than the state of real or imputed malice which is the foundation of the felony murder rule. Therefore, where the facts warrant it, a charge on voluntary manslaughter may indeed be given in a felony murder trial.
Additionally, we emphasize that voluntary manslaughter, and the felony of involuntary manslaughter where it applies, are not themselves felonies which will invoke the felony murder rule as to the death of the main victim. (We have here no question of accidentally killed bystanders). Therefore, if a jury finds felonious manslaughter, they should not go on to reason that this offense, being itself a felony, turns the killing into a felony murder. The jury should be instructed in accordance with this principle.
Apppellant, taking support from a recent note in 28 Mercer L. Rev. 371 (...
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...violent and irresistible passion in a reasonable person. Bailey v. State, 240 Ga. 112(2), 235 S.E.2d 650 (1977); cf. Malone v. State, 238 Ga. 251, 252, 232 S.E.2d 907 (1977); see The defendant contends the trial court erred in failing to charge the jury to disregard any pre-trial publicity ......
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...of manslaughter, to which any distinction between manslaughter and murder would be irrelevant.2 In a subsequent case, Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977), the same Georgia court held that commission of voluntary or involuntary manslaughter under the state's statutes will Not......
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Johnson v. State
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Cole v. State, 41816
...236 Ga. 754(1), 225 S.E.2d 269 (1976), and its progeny. Nothing said herein is intended to modify our holding in Malone v. State, 238 Ga. 251, 252, 232 S.E.2d 907 (1977). 3. The defendant contends the trial court improperly admitted an incriminating statement made to a police officer after ......