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Tessmer v. State11/30/2000
ed assault. The trial court in this case instructed the jury that accident is not a defense to the crime of felony murder, thereby impermissibly relieving the State of its burden of proving the requisite intent for the underlying felony.
There is no question that accident is a valid defense to the intent required to prove aggravated assault and, must, therefore, also be a valid defense to the imputed intent required to prove felony murder. See Martin v. State, 268 Ga. 682 (6) (492 SE2d 225) (1997); Rameau v. State, 267 Ga. 261 (1) (477SE2d 118) (1996) (jury properly instructed on defense of accident to charges of aggravated assault). Because the facts of this case support the defense of accident and the trial court's instruction removed the defense from the jury's consideration as to the felony murder count, I dissent to the majority opinion.
I am authorized to state that Chief Justice Benham and Presiding Justice Fletcher join in this dissent.
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