Crime of Murder in Georgia

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Definition of Murder in Georgia and Other Forms of Homicide

In Georgia, title 16 of the Georgia Code lists that there are 3 different types of Murder. These include First Degree Murder, Felony Murder, and Second Degree Murder. Although, not considered to be murder, Georgia law also recognizes two other types of homicides, voluntary manslaughter and involuntary manslaughter.

  • First Degree Murder – occurs when a person unlawfully and with malice aforethought, either express or implied, causes the death of another human being. OCGA §16-5-1 (a)
  • Second Degree Murder – occurs when in the commission of cruelty to children in the 2nd degree, a person causes the death of another human being irrespective of malice. OCGA § 16-5-1 (d)
  • Felony Murder – occurs when in commission of a felony, a person causes the death of another human being irrespective of malice. OCGA § 16-5-1 (c)
  • Voluntary Manslaughter – occurs when a person causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder. OCGA § 16-5-2 (a)
  • Involuntary Manslaughter – (Two definitions, please see below)-occurs when a person causes the death of another human being without intention to do so while committing an unlawful act other than a felony OCGA § 16-5-3 (a) OR -occurs when a person causes the death of another human being without intention to do so while committing a lawful act in an unlawful manner likely to cause death or great bodily harm OCGA § 16-5-3 (b)

What are the degrees of murder in Georgia?

The State of Georgia recognizes five distinct types of homicide. Among these are First Degree Murder, Second Degree Murder, Felony Murder, Voluntary Manslaughter, and Involuntary Manslaughter.

First Degree Murder AKA Malice Murder

To get a First Degree Murder conviction, the Prosecutor must prove beyond a reasonable doubt that the Defendant did the following:

  1. Caused the death of another person,
  2. Unlawfully, and
  3. With malice aforethought.

The big distinction that makes a homicide First Degree Murder as opposed to one of the others, is the element of malice aforethought.

What is Malice Aforethought?

First Degree Murder requires that the killing must have been done with malice. For it to be malice, it must be proven that the killer killed with the “unlawful intent to kill without justification, excuse or mitigation.” Malice means the intent to take a life without legal justification.

No specific length of time is required for malice to arise in a person’s mind. Malice may be formed in less than a second. If malice was in the Defendant’s mind at the time of the act or killing, and moved the Defendant to do it, that is enough for the killing to be malice murder.

How is Malice Aforethought proven in Court?

Malice aforethought can be proven by physical evidence, people’s statements, and by circumstances of the event. Malice can be found expressly or impliedly.

  1. Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. An example of this include shooting someone on purpose and killing them. The gun, witness statements, fingerprint evidence, and motive to kill are all types of evidence that can be used to prove express malice.
  2. Implied malice is where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart. It is conduct exhibiting a reckless disregard for human life. An example of implied malice could be unintentionally killing someone by running them over with your car while under the influence of alcohol/DUI.Georgia case law has defined implied malice as “extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another without any intent to kill or do serious bodily injury but causes the death of another.

* Murder and malice aforethought can be proven without evidence of premeditation. They can also be proven without evidence of motive.

Second Degree Murder

Second Degree Murder in Georgia only applies with the victim is a minor. It is very specific compared to other State’s definitions of Second Degree Murder. In Georgia, to be found guilty of Second Degree Murder the State must prove the following:

  1. Caused the death of another person
  2. While committing 2nd Degree Child Cruelty.

What is 2nd Degree Child Cruelty?

The Georgia Code says that 2nd degree child cruelty occurs when a person with criminal negligence causes a child under 18 years of age cruel or excessive physical or mental pain. OCGA §16-5-70 (c).

How is 2nd Degree Child Cruelty proven?

This offense requires a showing of negligence. Criminal negligence is an act or a failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured because of it.

An example could be a father who allows his minor child access to his gun cabinet. The child then takes possession of one of the firearms in the gun cabinet and accidentally shoots himself.

The State’s argument could be that the father’s unwillingness to prevent the child from accessing the firearms constituted a reckless disregard for the safety of the child and because of that failure the child suffered excessive physical pain from the gun shot. If the child dies from the gunshot, the father could be charged and convicted of committing Second Degree Murder.

Felony Murder

To be convicted of Felony Murder in Georgia, the State must prove beyond a reasonable doubt that:

  1. Caused the Death of another person
  2. By committing a felony

What does committing a felony mean with Felony Murder?

The underlying felony must be inherently dangerous to human life. That is the felony must be dangerous per se or by its circumstances creates a foreseeable risk of death. Felonies that are inherently dangerous include rape, kidnapping, aggravated assault, burglary and cruelty to children. According to the Supreme Court of Georgia an example of an underlying felony that is not inherently dangerous is the felony charge alone of possession of a firearm by convicted felon. Ford, 262 Ga 602 (1992).

How is Felony Murder proven?

There are two essential elements that are generally contentious in Felony Murder trials. The first is causation and the second is the underlying felony.

  1. Causation – Cause in this sense means proximate cause. Proximate cause is shown when the criminal conduct imposes some sort of foreseeable result or consequence. If a defendant is engaged in an armed robbery and a bystander jumps in to protect the victim and an innocent person is killed in the altercation, the State could argue that the death was a foreseeable result of engaging in armed robbery/criminal conduct.

    The Jury will decide whether causation is proven. The following Jury Instruction on causation in Felony Murder is given to all Juries in Georgia when a Defendant is on trial for felony murder:

    “You can find a Defendant guilty of felony murder if you believe that he caused the death of another person by committing the underlying felony, regardless of whether he intended the death to occur. There must be some causal connection between the felony and death. Felony murder is not established simply because the death occurred at the same time as or shortly after the felony was attempted or committed. The felony must have directly caused the death or played a substantial and necessary part in causing the death, regardless of when the death ultimately occurred.”

  2. Underlying Felony – When deciding whether the felony was committed, the jury nor the court will consider the elements of the felony in the abstract, but only will consider the circumstances under which the felony was committed. Therefore, there will be no trial on the underlying felony just the circumstances under which it was committed.

    Unfortunately, in Georgia, the underlying felony can also be proven under the theory of party to a crime. If the underlying felony is proven under this theory, a suspect can be found guilty of felony murder.

    A person is concerned in the commission of a crime under the theory of Party to a Crime OCGA § 16-2-20 if he:

    1. Directly commits the crime;
    2. Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;
    3. Intentionally aids or abets in the commission of the crime; or
    4. Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

    This theory can be applied in a scenario involving a getaway driver in a bank robbery. If someone dies during the commission of the bank robbery, the getaway driver can be found guilty of the bank robbery and of felony murder for aiding or abetting in the commission of the crime.

man assaulting another

Summary of Differences between Degrees of Murder

First Degree Murder requires a showing of malice aforethought. Neither second degree nor felony murder require a showing of malice.

Second degree murder involves victims that are children, and the death of the child must have occurred during the commission of second degree child cruelty. First Degree Murder and Felony Murder can involve any aged victim. Second Degree Murder is very limited and is a very specific fact scenario in Georgia compared to the other types of murders.

Felony Murder does not require malice, but it does require the requisite intent to commit the underlying felony. The underlying felony must be inherently dangerous and must be the proximate cause of the death.

What are the most common murder defenses?

There are several arguments that can be used to defend against the offense of murder, but each case is different than the next. For example, self-defense may be useful in one murder case, but a considered a useless defense in another murder case. The specific defense used will depend on the specific facts of the underlying murder.

  • Self-Defense/Defense of Others – A person is justified in using deadly force to defend himself or someone else if he reasonably believes that the use of that force is necessary to prevent death or great bodily harm to himself or someone else or to prevent the commission of a forcible felony.This defense fails if you initially provoked the situation. It fails if you used the deadly force while attempting to commit a felony or during fleeing of a felony. It also fails if the combat between you and the victim was by agreement.
  • Lack of Malice First degree murder requires the specific intent of malice. This defense is an attack on the sufficiency of the evidence. It is an argument saying that the State has not proven their case beyond a reasonable doubt. An essential element of First Degree Murder is malice. If the defendant did not intend to cause harm, then malice is not present. Without proof of malice, the defendant can not be guilty of First Degree Murder.
  • False Confession – A confession in a murder case can be a death knell. You should never speak to law enforcement. Law enforcement can use psychological techniques to get people to admit to things that are not true.When a confession is made in a murder case, it can be beneficial to keep the confession from being used at trial. If law enforcement gathered the confession without first giving Miranda rights or the confession was due to coercion, a judge might make the confession inadmissible at trial.If a confession does come in as evidence at trial, the next best course of action is to argue that the confession is false. The defendant lied when he spoke with law enforcement. The defendant did not commit the murder despite what he told the police during his interrogation.
  • Illegal Search and Seizure – Searches can yield murder weapons, DNA evidence, GPS locations, and a whole host of other incriminating evidence that can be used to prove a person’s guilt in a murder trial. The Fourth Amendment guarantees people the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.When law enforcement violates a person’s Fourth Amendment right, the law allows for the exclusion of evidence at trial. If a law enforcement officer illegally searches you and finds a murder weapon on you, the murder weapon could be excluded from being used to prove your guilt in a murder trial.

  • Mistaken Identification – Eye witnesses can be a major hurdle in murder cases. Imagine someone being shown a lineup of people’s faces and being asked which one of these people did you see commit the crime? If the eyewitness points to you, then that is more evidence that needs to be fought against.Eyewitnesses can be cross examined. A good cross examination could cast doubt on the eyewitness’s statements. Research has shown that there are a number of factors that can make eyewitness testimony unreliable. These include stress, circumstances around the scene of the crime, limitations on human memory, personal biases, how the eyewitness was presented with the lineup and questions, and the general personality of the witness.
  • Alibi – The defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission. Evidence must be presented by the accused that shows that he was not there at the time or place and that evidence must be reasonable in order to exclude the possibility of his presence at the scene.To use this defense, the accused must notify the state that it intends to use the defense of alibi at least 10 days before trial. The accused must also provide the specific place he was during the commission of the crime and the identity of any witnesses that help establish the alibi.
  • Insanity – A person cannot be guilty of a crime if at the time of the crime, the person did not have mental capacity to tell the difference between right and wrong in relation to the crime. Forensic Psychiatrists are trained to perform evaluations on individuals claiming the defense of insanity. These psychiatrists can be paid privately to perform private evaluations. If using a private evaluator and the results are not what you hope for, then you are under no obligation to provide that evidence to the Court or to the State.

What is the punishment for murder in Georgia?

An accused should know the maximum penalty for murder or homicide. These crimes are some of the most heinous crimes in our culture. The seriousness of these crimes comes with severe penalties. It is important that you understand what it is at play so that you can make an informed decision as to whether you plead guilty or take the case to trial.

  • First Degree Murder – the penalty is death or life imprisonment with or without parole.

    The death penalty also known as “Capital Murder” is still permitted in Georgia. The District Attorney determines whether they will seek the death penalty in a murder case. There are several aggravating factors and mitigating factors that matter when determining whether death is an appropriate punishment.

  • Second Degree Murder – the penalty is 10 to 30 years imprisonment
  • Felony Murder – the penalty is death or life imprisonment with or without parole

    If convicted of first degree murder and felony murder for a single homicide, the convicted may be sentenced on either, but not both.

  • Voluntary Manslaughter – the penalty is 1 to 20 years imprisonment
  • Type 1 Unlawful Act Involuntary Manslaughter – the penalty is 1 to 10 years imprisonment
  • Type 2 Lawful Act in an Unlawful Manner Involuntary Manslaughter – the penalty is a misdemeanor,12 months in jail


What is the difference between first and second degree murder?

First Degree Murder requires a showing of malice. Malice is an intent to kill. Second Degree murder in Georgia occurs when a child dies during the commission of committing 2nd degree child cruelty. The penalty for First degree is death or life imprisonment with or without parole. The penalty for Second Degree is 10 to 30 years imprisonment.

What is the difference between capital murder and first degree murder?

The State decides whether they will seek the death penalty in a murder case. If the death penalty is sought, the case becomes one of capital murder. The main difference between the two forms of murder are the aggravating factors. For the death penalty to apply, the jury must find aggravating factors that make the penalty of death justified.

What Is the difference between voluntary manslaughter and murder?

There are three types of murder in Georgia. (First Degree, Second Degree, and Felony) They all require a showing of specific intent to kill or to commit the underlying felony. Voluntary Manslaughter would be the same as murder if not for some mitigating evidence. The mitigating evidence could be that the accused decided to kill because he was provoked to the extent that he was overcome by an irresistible passion to kill. As an example, it could be voluntary manslaughter when self-defense is not quite perfect or if you walk in on your wife cheating and kill her and her lover. The penalty for voluntary manslaughter could be much less severe than the penalties for murder.

What’s the difference between malice murder and first degree murder?

Malice murder is first degree murder. There is no difference between the two and the penalties are the same. (Death or life imprisonment with or without parole) The distinction is whether malice is express or implied. Either way, first degree murder requires the State to prove malice beyond a reasonable doubt. An example of express malice would be shooting someone in the chest because you want to watch them die. Implied malice would be running your car through a parade of people while under the influence of intoxicants without the intent to actually kill anyone, but yet you did kill someone.

Contact A Statesboro Lawyer Today

If you are facing a charge of murder, voluntary manslaughter or involuntary manslaughter it is important that you secure an experienced and competent defense lawyer as soon as possible. At Joseph Williams Law Firm, that is exactly what you will receive. Our lawyer will represent you to the very best of his ability. He will keep you informed on the evidence against you, possible defenses that can be used, the likelihood of their successes, any plea offers, and the risks of going to trial. Please contact us for a free consultation at 912-259-6548 or fill out our online contact form to speak to a defense attorney today.

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