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Tessmer v. State11/30/2000
ident or misfortune even if the discharge of the gun was unintentional.
Tessmer asserts the trial court erred by instructing the jury that accident was a defense to the underlying felony of aggravated assault, but it was not a defense to felony murder. We disagree.
Under Georgia law " person . . . commits the offense of murder when, in the commission of a felony, he [or she] causes the death of another human being, irrespective of malice." OCGA § 16-5-1 (c). Malice means the intent to take a life without legal justification or mitigation. Brown v. State, 270 Ga. 601, 604 (512 SE2d 260) (1999). Thus, malice, or the intent to kill, is not an element of felony murder:
Proof of felony murder does not require proving malice or the intent to kill, but only that the defendant had the requisite criminal intent to commit the underlying felony. Franklin v. State, 268 Ga. 865, 866 (1) (494 SE2d 327) (1998). Martin v. State, 271 Ga. 301, 303 (1) (518 SE2d 898) (1999).
It follows that the trial court did not err in charging the jury that, while accident can be a defense to the underlying felony of aggravated assault, it cannot be a defense to a felony murder predicated upon the underlying felony of aggravated assault. See Turner v. State, supra at 361 (3), in which this Court approved a charge which is nearly identical to the charge in question so long as it is given with an appropriate charge on the law of accident or misfortune. After all, mens rea is a necessary element of aggravated assault; but it is not a separate component of felony murder.
Turner v. State, supra at 359 (2), is inapposite insofar as it reversed the trial court for refusing to charge on both accident and self-defense. In that felony murder case, the trial court refused to charge the jury on the law as to both justification and accident, finding the charges to be mutually exclusive. The trial court did charge the law of self-defense, but not accident. This court reversed, holding that the facts of the case presented a situation where the law on both accident and self-defense should be charged.
In this case, unlike Turner, the trial court did charge the law on both accident and self-defense, albeit with respect to the underlying felony only. Inasmuch as the trial court gave a complete charge on the underlying felony of aggravated assault, including the defenses of justification and accident, and also instructed the jury that it could not convict for felony murder unless Tessmer was found guilty of the underlying felony of aggravated assault, we find the charge to be complete and correct.
3. Relying upon Edge v. State, 261 Ga. 865, 867, fn. 3 (414 SE2d 463) (1992), Tessmer asserts the trial court committed reversible error because it failed to charge the jury that if it found the aggravated assault was the result of provocation and passion, it could not find felony murder, but would be authorized, but not required, to find voluntary manslaughter. See Harrison v. State, 268 Ga. 574, 576 (492 SE2d 218) (1997); Russell v. State, 265 Ga. 203, 205 (455 SE2d 34) (1995). We disagree.
We do not require the trial courts to follow an exact formula in instructing juries so long as the charge as a whole ensures that the jury will consider whether evidence of provocation and passion might authorize a verdict of voluntary manslaughter. Suah v. State, 271 Ga. 89, 90 (2) (515 SE2d 614) (1999).
Viewing the charge as a whole, we find that the jury was instructed properly that it should first consider evidence of passion and provocation to determine whether Tessmer was guilty of voluntary manslaughter. Thus, unlike Harrison v. State, supra, the trial court d
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