Crime of Murder in Georgia

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.

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.

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.