Cross references.

- Disfranchisement of persons for conviction of felony involving moral turpitude, Ga. Const. 1983, Art. II, Sec. I, Para. III and § 21-2-216.

Applicability of title to financial institutions and their directors, officers, and others, § 7-1-841.

Offenses giving rise to cancellation, suspension, or revocation of drivers' licenses, § 40-5-50 et seq.

Law reviews.

- For article discussing history of criminal law in Georgia, and some of the problems facing the criminal law study commission created in 1961, see 15 Mercer L. Rev. 399 (1964). For article advocating the adoption of the proposed Criminal Code of 1968, see 3 Ga. St. B. J. 145 (1966). For article discussing the 1968 Criminal Code of Georgia, comparing pre-existing provisions of Georgia criminal law, see 5 Ga. St. B. J. 185 (1968). For article discussing developments in Georgia criminal law in 1976 to 1977, see 29 Mercer L. Rev. 55 (1977). For article, "Toward a Perspective on the Death Penalty Cases," see 27 Emory L.J. 469 (1978). For article surveying cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978). For article surveying judicial developments in Georgia Criminal Law, see 31 Mercer L. Rev. 59 (1979). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For article surveying criminal law and procedure in 1984-1985, see 37 Mercer L. Rev. 179 (1985). For annual survey of criminal law and procedure, see 39 Mercer L. Rev. 127 (1987). For annual survey of criminal law and procedure, see 40 Mercer L. Rev. 153 (1988). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For annual survey of criminal law and procedure, see 43 Mercer L. Rev. 175 (1991). For annual survey on criminal law and procedure, see 44 Mercer L. Rev. 165 (1992). For annual survey on criminal law and procedure, see 45 Mercer L. Rev. 135 (1993). For annual survey on criminal law and procedure, see 46 Mercer L. Rev. 153 (1994). For annual survey on criminal law and procedure, see 48 Mercer L. Rev. 219 (1996). For annual survey discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For annual survey discussing developments in criminal law, see 52 Mercer L. Rev. 167 (2000). For article, "Criminal Law as Family Law," see 33 Ga. St. U. L. Rev. 285 (2017). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Safety from Flawed Forensic Sciences Evidence," see 34 Ga. St. U. L. Rev. 1129 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: The First Amendment Case for Public Access to Secret Algorithms Used in Criminal Trials," see 34 Ga. St. U. L. Rev. 915 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: The UK Forensic Science Regulator: A Model for Forensic Science Regulation?," see 34 Ga. St. U. L. Rev. 945 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Three Transformative Ideals to Build a Better Crime Lab," see 34 Ga. St. U. L. Rev. 1007 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Deploying the Secret Police: The Use of Algorithms in the Criminal Justice System," see 34 Ga. St. U. L. Rev. 1073 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Symposium Keynote Address: Uncovering Forensic Laws: An Outside Perspective," see 34 Ga. St. U. L. Rev. 1221 (2018). For article, "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform: Safety from Flawed Forensic Sciences Evidence," see 34 Ga. St. U. L. Rev. 1129 (2018). For article, "Restoring Public Confidence in the Criminal Justice System: Policing Prosecutions When Prosecutors Prosecute Police," see 67 Emory L.J. 853 (2018). For article, "The Right to Two Criminal Defense Lawyers," see 69 Mercer L. Rev. 675 (2018). For article, "Participatory Defense: Humanizing the Accused and Ceding Control to the Client," see 69 Mercer L. Rev. 715 (2018). For article, "Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions," see 69 Mercer L. Rev. 453 (2018). For note, "Seen But Not Heard: An Argument for Granting Evidentiary Hearings to Weigh the Credibility of Recanted Testimony," see 46 Ga. L. Rev. 213 (2011).

RESEARCH REFERENCES

Investigating Particular Crimes, 2 Am. Jur. Trials 171.

CHAPTER 1 GENERAL PROVISIONS

RESEARCH REFERENCES

Abandonment of Crime, 8 POF2d 231.

Attachment of Double Jeopardy, 13 POF2d 609, § 4.

ALR.

- Employer's liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer, 13 A.L.R.5th 217.

16-1-1. Short title.

This title shall be known and may be cited as the "Criminal Code of Georgia."

(Code 1933, § 26-101, enacted by Ga. L. 1968, p. 1249, § 1.)

16-1-2. Purposes of title.

The general purposes of this title are:

  1. To forbid and prevent conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests;
  2. To give fair warning of the nature of the conduct forbidden and the sentence authorized upon conviction;
  3. To define that which constitutes each crime; and
  4. To prescribe penalties which are proportionate to the seriousness of crimes and which permit recognition of differences in rehabilitation possibilities among individual criminals.

(Code 1933, § 26-102, enacted by Ga. L. 1968, p. 1249, § 1.)

JUDICIAL DECISIONS

Pregnant woman not guilty of transporting drugs to fetus.

- Pregnant woman could not have reasonably known that she could have been prosecuted for delivering or distributing cocaine to her fetus since the fetus was not a "person" within the meaning of the relevant statute; thus, she did not receive the fair warning mandated by O.C.G.A. § 16-1-2. State v. Luster, 204 Ga. App. 156, 419 S.E.2d 32, cert. denied, 204 Ga. App. 922, 419 S.E.2d 32 (1992).

RESEARCH REFERENCES

Am. Jur. 2d.

- 16A Am. Jur. 2d, Constitutional Law, § 427. 16B Am. Jur. 2d, Constitutional Law, § 972. 21 Am. Jur. 2d, Criminal Law, § 15 et seq.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, §§ 8, 23.

16-1-3. Definitions.

As used in this title, the term:

  1. "Affirmative defense" means, with respect to any affirmative defense authorized in this title, unless the state's evidence raises the issue invoking the alleged defense, the defendant must present evidence thereon to raise the issue. The enumeration in this title of some affirmative defenses shall not be construed as excluding the existence of others.
  2. "Agency" means:
    1. When used with respect to the state government, any department, commission, committee, authority, board, or bureau thereof; and
    2. When used with respect to any political subdivision of the state government, any department, commission, committee, authority, board, or bureau thereof.
  3. "Another" means a person or persons other than the accused.
  4. "Conviction" includes a final judgment of conviction entered upon a verdict or finding of guilty of a crime or upon a plea of guilty.
  5. "Felony" means a crime punishable by death, by imprisonment for life, or by imprisonment for more than 12 months.
  6. "Forcible felony" means any felony which involves the use or threat of physical force or violence against any person.
  7. "Forcible misdemeanor" means any misdemeanor which involves the use or threat of physical force or violence against any person.
  8. "Government" means the United States, the state, any political subdivision thereof, or any agency of the foregoing.
  9. "Misdemeanor" and "misdemeanor of a high and aggravated nature" mean any crime other than a felony.
  10. "Owner" means a person who has a right to possession of property which is superior to that of a person who takes, uses, obtains, or withholds it from him and which the person taking, using, obtaining, or withholding is not privileged to infringe.
  11. "Peace officer" means any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all crimes or is limited to specific offenses.
  12. "Person" means an individual, a public or private corporation, an incorporated association, government, government agency, partnership, or unincorporated association.
  13. "Property" means anything of value, including but not limited to real estate, tangible and intangible personal property, contract rights, services, choses in action, and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, and electric or other power.
  14. "Prosecution" means all legal proceedings by which a person's liability for a crime is determined, commencing with the return of the indictment or the filing of the accusation, and including the final disposition of the case upon appeal.
  15. "Public place" means any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor's family or household.
  16. "Reasonable belief" means that the person concerned, acting as a reasonable man, believes that the described facts exist.
  17. "State" means the State of Georgia, all land and water in respect to which this state has either exclusive or concurrent jurisdiction, and the airspace above such land and water.
  18. "Without authority" means without legal right or privilege or without permission of a person legally entitled to withhold the right.
  19. "Without his consent" means that a person whose concurrence is required has not, with knowledge of the essential facts, voluntarily yielded to the proposal of the accused or of another.

(Laws 1833, Cobb's 1851 Digest, p. 780; Code 1863, § 6; Code 1868, § 5; Code 1873, § 5; Code 1882, § 5; Penal Code 1895, § 2; Penal Code 1910, § 2; Code 1933, § 26-101; Code 1933, § 26-401, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1970, p. 236, § 1; Ga. L. 1973, p. 292, § 3; Ga. L. 1982, p. 3, § 16.)

Law reviews.

- For article on the effect of nolo contendere plea on conviction, see 13 Ga. L. Rev. 723 (1979). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B. J. 8 (2001). For note discussing the felony murder rule, and proposing legislation to place limitations on Georgia's felony murder statute, see 9 Ga. St. B. J. 462 (1973). For note, "I Tolled You I Had More Time!: The Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.C.G.A. § 9-3-99," see 68 Mercer L. Rev. 557 (2017). For comment on Tant v. State, 123 Ga. App. 760, 182 S.E.2d 502 (1971), advocating additional reform of Georgia's system of appellate review of criminal cases, see 9 Ga. St. B. J. 490 (1973).

JUDICIAL DECISIONS

General Consideration

Construction with more specific sentencing statute.

- It was error to charge as to a minimum period of imprisonment under former Code 1933, § 26-401, where the statute under which defendant was charged with possession of secobarbital provided for both a fine and imprisonment "not to exceed two years" but did not provide a minimum term of imprisonment. Neal v. State, 130 Ga. App. 708, 204 S.E.2d 451 (1974).

Term "another" in O.C.G.A. § 16-6-2(a) (sodomy) includes the accused person. Porter v. State, 168 Ga. App. 703, 309 S.E.2d 919 (1983).

Term "person".

- On remand from the U.S. Supreme Court, a class action suit filed by legal employees of a Georgia rug manufacturer, alleging state RICO violations based on the widespread hiring of illegal aliens in order to depress the hourly wages of its workers, survived a motion to dismiss for failure to state a claim; the federal appellate court deferred to the Supreme Court of Georgia holding that O.C.G.A. § 16-14-4, when read in conjunction with O.C.G.A. §§ 1-3-3(14) and16-1-3(12), provided that "any person" could be sued under the Georgia RICO statute, including corporations such as the rug manufacturer. Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006), cert. denied, mot. denied, 549 U.S. 1260, 127 S. Ct. 1381, 167 L. Ed. 2d 174 (2007).

Term "property".

- Taxpayers were not entitled to a theft loss under 26 U.S.C. § 165(e) with respect to a decline in value of publicly traded stock, as a theft by taking did not occur under O.C.G.A. § 16-8-2 because a corporation did not unlawfully take or appropriate any property from the taxpayer, and there was no evidence of any intention by the corporation or its executives to deprive the taxpayer of the property at issue. Although corporate stock, which was in the taxpayer's control after the taxpayer exercised the taxpayer's stock options, subsequently declined in value, there was no evidence that the corporate executives had any specific intent with regard to the taxpayer to take or appropriate the taxpayer's stock by devaluation or by any other means; rather, the goal of the corporation, including its later-convicted executives, was to increase the value of the stock, including any stock owned and controlled by the taxpayer. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).

Term "prosecution".

- Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21 (b) and16-8-2, was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a), in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017).

Fears must be those of a reasonable man, and not just the defendant's. Thus, where the defense was self-defense, the trial court did not err in excluding testimony, the purpose of which was to describe particular circumstances such as would excite the defendant's fears. Daniels v. State, 158 Ga. App. 476, 282 S.E.2d 118, rev'd on other grounds, 248 Ga. 591, 285 S.E.2d 516 (1981).

"Conviction".

- Entry of a guilty plea was not a judgment of conviction until sentence was imposed; therefore, a defendant who walked away from the courthouse after plea entry but before sentencing was not guilty of felony escape, but could be convicted only of misdemeanor escape. Dorsey v. State, 259 Ga. App. 254, 576 S.E.2d 637 (2003).

Remand for further determination was necessary because it was unclear whether one of defendant's convictions, which was a first offender conviction pursuant to O.C.G.A. § 42-8-60 et seq., was successfully completed, in which case there was no "conviction" as that term was defined under O.C.G.A. § 16-1-3(4) as there would have been no adjudication of guilt, or alternatively, whether the first offender sentence was violated and the trial court thereafter entered an adjudication of guilt and a sentence thereon, in which case it could be counted as one of the three felonies for purposes of recidivist sentencing under O.C.G.A. § 17-10-7(c). Swan v. State, 276 Ga. App. 827, 625 S.E.2d 97 (2005).

Prospective petit juror serving a sentence under the First Offender Act, O.C.G.A. § 42-8-60 et seq., had not been "convicted" within the meaning of O.C.G.A. § 15-12-163(b)(5), which allowed either the state or the accused to object to the seating of a juror who had been convicted of a felony; the trial court therefore erred in disqualifying the juror for cause. Humphreys v. State, 287 Ga. 63, 694 S.E.2d 316, cert. denied, 131 S. Ct. 599, 178 L. Ed. 2d 438 (2010), overruled in part by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

Trial counsel was not ineffective as the defendant's guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge's oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant's plea in bar. Hantz v. State, 337 Ga. App. 675, 788 S.E.2d 567 (2016).

False swearing constituted a felony.

- Defendant was not entitled to relief from defendant's sentence for false swearing, in violation of O.C.G.A. § 21-2-565, because the rule of lenity did not apply in that there was no uncertainty as to the applicable sentence for the crime, and the imposition of a five-year sentence was appropriate and within the sentencing range, under O.C.G.A. § 16-10-71, for the offense, which constituted a felony under O.C.G.A. § 16-1-3. Hogan v. State, 316 Ga. App. 708, 730 S.E.2d 178 (2012).

"Forcible felony".

- Child molestation constitutes a forcible felony for the purpose of establishing the defense of justification pursuant to O.C.G.A. § 16-3-21(a). Brown v. State, 268 Ga. 154, 486 S.E.2d 178 (1997).

When the defendant was charged with aggravated assault and family-violence battery arising from a chokehold the defendant applied to the defendant's pregnant wife, the defendant's motion for immunity was improperly granted because the defendant and the victim were married at the time of the altercation, they lived in the house where the incident occurred together, the victim routinely took care of the parties' small dog, and the victim was entitled to handle the dog, including putting the dog out of the house; and the defendant reacted to the victim's struggling against the chokehold by tightening the defendant's grip, which was not justified as the victim was not committing a forcible felony against the dog. State v. Morgan, 346 Ga. App. 702, 814 S.E.2d 823 (2018).

Defense of personal property during aggravated assault, a forcible felony.

- Trial court did not commit plain error in charging the jury because the jury was charged that the defendant's use of deadly force in defense of property would be justified if reasonably believed to be necessary to prevent the commission of a forcible felony and that aggravated assault was a forcible felony; thus, the jury had sufficient direction in order to intelligently consider the defense-of- personal-property theory of justification based on the defendant's claim that the victim committed aggravated assault when the victim lunged at the individual holding the gun and attempted to wrestle the gun away from the other individual. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018).

State carried burden of disproving justification defense.

- Trial court did not err in determining that the state carried the state's burden of introducing evidence that disproved the defendant's alleged justification for the defendant's use of deadly force because the defendant intentionally fired a gun at the defendant's fiancee and the fiancee's three children while they were sitting in the fiancee's car and it was within the jury's province to reject the defendant's contention that the defendant was afraid the fiancee was trying to run the defendant over. Williams v. State, 347 Ga. App. 171, 818 S.E.2d 88 (2018).

Age at the time of the offense.

- Defendant did not show that pursuant to O.C.G.A. § 16-1-3 (1) either the defendant or the state raised the issue as to the defendant's age at the time of the crimes, and thus, neither an allegation nor proof of the defendant's age was necessary to show the defendant's capacity for committing the crimes charged. Construed most strongly in support of the verdicts, the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the crimes of child molestation and aggravated child molestation as charged in the indictment. Adams v. State, 288 Ga. 695, 707 S.E.2d 359 (2011).

Failure to charge on affirmative defenses error even if defendant refused to admit criminal conduct.

- In the defendant's aggravated assault trial, O.C.G.A. § 16-5-21(a)(2), based on the defendant aiming a BB rifle at two victims, the trial court erred in denying the defendant's requested jury instructions on the defense of self and habitation, on the basis that the defendant did not admit pointing the gun at the victims; if slight evidence supported the defenses, the charges should have been given. Defendant was not required to admit the elements of the crime in order to argue the defendant's theory of defense. McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

Cited in Massey v. State, 226 Ga. 703, 177 S.E.2d 79 (1970); Moore v. State, 228 Ga. 662, 187 S.E.2d 277 (1972); Gordon v. State, 127 Ga. App. 308, 193 S.E.2d 255 (1972); Chandle v. State, 230 Ga. 574, 198 S.E.2d 289 (1973); Pope v. State, 129 Ga. App. 209, 199 S.E.2d 368 (1973); Andrews v. State, 130 Ga. App. 2, 202 S.E.2d 246 (1973); Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973); E.P. v. State, 130 Ga. App. 512, 203 S.E.2d 757 (1973); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); White v. Henry, 232 Ga. 64, 205 S.E.2d 206 (1974); Key v. State, 131 Ga. App. 126, 205 S.E.2d 510 (1974); Walker v. State, 132 Ga. App. 274, 208 S.E.2d 5 (1974); DeFoor v. State, 233 Ga. 190, 210 S.E.2d 707 (1974); Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578 (1975); Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975); Moore v. State, 137 Ga. App. 735, 224 S.E.2d 856 (1976); White v. State, 138 Ga. App. 470, 226 S.E.2d 296 (1976); Brown v. State, 143 Ga. App. 256, 238 S.E.2d 258 (1977); Singleton v. State, 143 Ga. App. 387, 238 S.E.2d 743 (1977); Singleton v. State, 146 Ga. App. 72, 245 S.E.2d 473 (1978); Busbee v. Reserve Ins. Co., 147 Ga. App. 451, 249 S.E.2d 279 (1978); Manemann v. State, 147 Ga. App. 747, 250 S.E.2d 164 (1978); State v. Raybon, 242 Ga. 858, 252 S.E.2d 417 (1979); State v. Moore, 243 Ga. 594, 255 S.E.2d 709 (1979); Ratliff v. State, 150 Ga. App. 695, 258 S.E.2d 324 (1979); Ramsey v. Powell, 244 Ga. 745, 262 S.E.2d 61 (1979); State v. Davis, 246 Ga. 761, 272 S.E.2d 721 (1980); Crook v. State, 156 Ga. App. 756, 275 S.E.2d 794 (1980); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980); State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151 (1981); State v. Roulain, 159 Ga. App. 233, 283 S.E.2d 89 (1981); Collins v. State, 160 Ga. App. 680, 288 S.E.2d 43 (1981); Morgan v. State, 161 Ga. App. 484, 287 S.E.2d 739 (1982); Coppola v. State, 161 Ga. App. 517, 288 S.E.2d 744 (1982); Wilson v. State, 250 Ga. 630, 300 S.E.2d 640 (1983); Hambrick v. State, 174 Ga. App. 444, 330 S.E.2d 383 (1985); Brown v. State, 177 Ga. App. 284, 339 S.E.2d 332 (1985); Smith v. State, 190 Ga. App. 246, 378 S.E.2d 493; Rucker v. State, 191 Ga. App. 108, 381 S.E.2d 91 (1989); Griffin v. State, 199 Ga. App. 646, 405 S.E.2d 877 (1991); Leslie v. State, 211 Ga. App. 871, 440 S.E.2d 757 (1994); Kelley v. State, 235 Ga. App. 177, 509 S.E.2d 110 (1998); State v. Lockett, 259 Ga. App. 179, 576 S.E.2d 582 (2003); Middleton v. State, 264 Ga. App. 615, 591 S.E.2d 493 (2003); Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006); In the Interest of P.R., 282 Ga. App. 480, 638 S.E.2d 898 (2006); Lee v. State, 283 Ga. App. 826, 642 S.E.2d 876 (2007); Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886 (2007); Burnette v. State, 291 Ga. App. 504, 662 S.E.2d 272 (2008), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019); Land v. State, 291 Ga. App. 617, 662 S.E.2d 368 (2008); Hollis v. State, 295 Ga. App. 529, 672 S.E.2d 487 (2009); State v. Canup, 300 Ga. App. 678, 686 S.E.2d 275 (2009); Moreland v. State, 304 Ga. App. 468, 696 S.E.2d 448 (2010); DeLong v. State, 310 Ga. App. 518, 714 S.E.2d 98 (2011); Wells v. State, 313 Ga. App. 528, 722 S.E.2d 133 (2012); State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (2012); State v. Newton, 294 Ga. 767, 755 S.E.2d 786 (2014); Banks v. State, 329 Ga. App. 174, 764 S.E.2d 187 (2014); Nordahl v. State, 306 Ga. 15, 829 S.E.2d 99 (2019); Budhani v. State, 306 Ga. 315, 830 S.E.2d 195 (2019); Bd. of Regents of the Univ. Sys. of Ga. v. One Sixty Over Ninety, LLC, 351 Ga. App. 133, 830 S.E.2d 503 (2019), cert. denied, 2020 Ga. LEXIS 118 (Ga. 2020).

Public Place

What constitutes "public place".

- What constitutes a "public place" within the meaning of former Code 1933, § 26-401 is a question of fact which must be proved or disproved by evidence in each case. Rushing v. State, 133 Ga. App. 434, 211 S.E.2d 389 (1974).

Whether the act giving rise to a charge of public indecency was performed in a "public place" within the meaning of O.C.G.A. § 16-1-3 was a question of fact which the trial court properly left for the jury's resolution. Collins v. State, 191 Ga. App. 289, 381 S.E.2d 430 (1989).

Evidence supported defendant's conviction for abandonment of a controlled substance in a public place, in violation of O.C.G.A. § 16-13-3, because when defendant realized that undercover officers were approaching, defendant threw the crack cocaine that defendant was holding at a trash barrel on the abandoned residential lot where defendant was standing; the area was within the definition of "public place" under O.C.G.A. § 16-1-3(15), as it was viewed by persons other than the members of defendant's family or household. Woods v. State, 275 Ga. App. 471, 620 S.E.2d 660 (2005).

Jail is not a public place.

- Defendant's conviction for affray in violation of O.C.G.A. § 16-11-32 was reversed because the altercation occurred in the Hall County Jail, which was not a "public place" as required for conviction pursuant to O.C.G.A. §§ 16-1-3(15) and16-6-8(d). Singletary v. State, 310 Ga. App. 570, 713 S.E.2d 698 (2011).

Exposure in front of window.

- Evidence that defendant would come home from work, pull off clothes and be exposed in front of the window "[j]ust to get a thrill" was sufficient to support conviction for public indecency although the act was committed in a private residence. Hester v. State, 164 Ga. App. 871, 298 S.E.2d 292 (1982).

Exposure in marital bedroom and adjoining bathroom.

- Where defendant appeared nude in the presence of a teenage female babysitter in the marital bedroom and bathroom at his home, the evidence indicated that defendant by his own behavior converted his bedroom and bath from a private zone to a public place, where his nudity might reasonably be expected to be viewed by people other than members of his family or household, and thereby supports his conviction and sentence for public indecency. Greene v. State, 191 Ga. App. 149, 381 S.E.2d 310, cert. denied, 191 Ga. App. 922, 381 S.E.2d 310 (1989).

Visible from outside apartment.

- In prosecution for public indecency, although an apartment may come within the definition of "public place," in such a case the state must show that defendant was visible from outside the apartment. McGee v. State, 165 Ga. App. 423, 299 S.E.2d 573 (1983).

A shopping center parking lot is a public place. Clark v. State, 169 Ga. App. 535, 313 S.E.2d 748 (1984).

Defendant's loud and boisterous actions in backyard and driveway were sufficiently "public" to support a charge of public drunkenness. Ridley v. State, 176 Ga. App. 669, 337 S.E.2d 382 (1985).

Burglary from office which was not public.

- Jury was authorized to conclude that the defendant was "without authority" to enter the victim's office as the evidence did not show that the building where the offense occurred was open to the public and the victim's purse was located in the victim's private office; thus, sufficient evidence supported the defendant's burglary conviction. Streeter v. State, 331 Ga. App. 322, 771 S.E.2d 33 (2015).

Prosecution

Filing of accusation.

- Generally, a prosecution in state court commences with the filing by the solicitor of an accusation or Uniform Traffic Citation with the clerk of the court. State v. Rish, 222 Ga. App. 729, 476 S.E.2d 50 (1996).

Where the initial filing of a Uniform Traffic Citation (UTC) was not done by the solicitor, or with the solicitor's permission, the dismissal of the charges did not preclude the solicitor from refiling them on a new, formally drawn accusation, or on a UTC. State v. Rish, 222 Ga. App. 729, 476 S.E.2d 50 (1996).

Prosecution against defendant for simple battery was timely filed within two years, pursuant to O.C.G.A. § 17-3-1(d), since the accusation was filed within the time period which was deemed the commencement of the matter pursuant to O.C.G.A. § 16-1-3(14); the fact that the supporting affidavit was filed six days after the limitations period ran did not affect the timeliness of the action, pursuant to O.C.G.A. § 17-7-71(a), because that document was for the issuance of an arrest warrant. Cochran v. State, 259 Ga. App. 130, 575 S.E.2d 901 (2003).

Return of indictment.

- In Georgia, a limitation period expires when a suspect is indicted or, more precisely, when the indictment is "returned." Dean v. State, 252 Ga. App. 204, 555 S.E.2d 868 (2001).

A trial court did not err in denying a defendant's motion to quash the indictment charging trafficking of cocaine since another county had not yet commenced its prosecution with the return of an indictment; therefore, the county charging defendant was authorized to exercise its jurisdiction by indicting defendant for trafficking in cocaine. Lawrence v. State, 289 Ga. App. 698, 658 S.E.2d 144 (2008), cert. denied, No. S08C1086, No. S08C1084, 2008 Ga. LEXIS 486 (Ga. 2008).

Return of second indictment.

- Trial court did not err in finding that the state had the ability to bring the second indictment against the defendant because the first appeal filed concerned the issue of whether the first indictment was read in open court as required under Georgia law whereas the second indictment initiated a completely separate prosecution on the same charges and no contention was raised that the second indictment suffered from the same infirmity as the first indictment. Brown v. State, 322 Ga. App. 446, 745 S.E.2d 699 (2013).

Indictment charging involuntary manslaughter by simple battery sufficient.

- Indictment charging the defendant with involuntary manslaughter by the commission of the unlawful act of simple battery in violation of O.C.G.A. §§ 16-5-3(a) and16-5-23(a) was not void because the factual allegations in the indictment sufficiently described the offense of involuntary manslaughter in the commission of the unlawful act of simple battery. Morris v. State, 310 Ga. App. 126, 712 S.E.2d 130 (2011).

Prosecution for misdemeanor.

- The trial court did not err in refusing to dismiss uniform traffic citations issued within two years of the date the offenses occurred, but later amended by the state, on the ground that the statute of limitation expired; the amended accusations did not constitute the commencement of a new prosecution and there had been no final disposition of the previously filed accusations. Prindle v. State, 240 Ga. App. 461, 523 S.E.2d 44 (1999).

OPINIONS OF THE ATTORNEY GENERAL

District attorney does not fall within definition of "peace officer" in former Code 1933, § 26-401. 1969 Op. Att'y Gen. No. 69-339.

Coroners are not "peace officers" under paragraph (11).

- Under former Code 1933, § 26-401 (see now O.C.G.A. § 17-4-20), a peace officer may arrest a sheriff with or without a warrant; however coroners do not fall within aegis of "peace officers" under former Code 1933, § 26-401 (see now O.C.G.A. § 16-1-3(11)) and consequently cannot arrest a sheriff in circumstances where a peace officer may be able to, but a private citizen would not. 1973 Op. Att'y Gen. No. 73-93.

Military police distinguished from "peace officers."

- Military police, unlike peace officers, are not vested by law with a duty to maintain "public" order. Instead, military police are confined to law and order operations within the military reservation. 1991 Op. Att'y Gen. No. 91-3.

Off-duty military police may not be employed by a chief of police as part-time city police officers. 1991 Op. Att'y Gen. No. 91-3.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 114. 29 Am. Jur. 2d, Evidence, § 195. 30 Am Jur. 2d, Evidence § 1048. 75 Am. Jur. 2d, Trial, §§ 312, 331.

Defending Minor Felony Cases, 13 Am. Jur. Trials 465.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, §§ 46, 47. 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 970, 972.

ALR.

- Validity of statute or ordinance prohibiting or regulating holding of meeting in street, 25 A.L.R. 114.

"Property" as including business or profession, 34 A.L.R. 716.

Character of offense as a felony as affected by discretion of court or jury as regards punishment, 95 A.L.R. 1115.

What amounts to conviction or satisfies requirement as to showing of conviction, within statute making conviction a ground for refusing to grant or for canceling license or special privilege, 113 A.L.R. 1179.

When criminal prosecution deemed pending within saving clause of statute, or principle which prevents application of statute to pending prosecution, 122 A.L.R. 670.

What constitutes former "conviction" within statute enhancing penalty for second or subsequent offense, 5 A.L.R.2d 1080.

Larceny: entrapment or consent, 10 A.L.R.3d 1121.

Burden of proof of defendant's age, in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.

Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.

What constitutes "public place" within meaning of statutes prohibiting commission of sexual act in public place, 96 A.L.R.3d 692.

Right of party litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law, 7 A.L.R.4th 1146.

Who "harbors" or "keeps" dog under animal liability statute, 64 A.L.R.4th 963.

What constitutes "public place" within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place, 95 A.L.R.5th 229.

16-1-4. When conduct constitutes a crime; power of court to punish contempt or enforce orders, civil judgments, and decrees.

No conduct constitutes a crime unless it is described as a crime in this title or in another statute of this state. However, this Code section does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order, civil judgment, or decree.

(Code 1933, § 26-201, enacted by Ga. L. 1968, p. 1249, § 1.)

Cross references.

- Exercise of contempt power generally, § 15-1-4.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided prior to codification of this principle of law by Ga. L. 1968, p. 1249, § 1 are included in the annotations for this Code section.

Since 1833 we have had only statutory offenses. Kilpatrick v. State, 72 Ga. App. 669, 34 S.E.2d 719 (1945) (decided under former Code 1933).

Violation of public law.

- Our law recognizes no crimes save such as consist of violation of a public law, and there are in this state no common-law offenses save such as have been especially recognized by statutory enactment. Moore v. State, 94 Ga. App. 210, 94 S.E.2d 80 (1956) (decided under former Code 1933).

Defendant was improperly convicted of criminal contempt as defendant ended defendant's cross-examination when defendant was told that the time was up, and defendant might have desired to ask additional questions; that the trial court felt that some areas had not been adequately covered or covered only at the end was of no consequence; and the order to reorganize a cross-examination was too vague to be enforceable as the manner in which the cross-examination was organized was more properly left to defendant's discretion, and the exercise of that discretion in a manner different from what the trial court would have exercised was not grounds for finding that defendant willfully violated a trial court order. In re Butterfield, 265 Ga. App. 745, 595 S.E.2d 588 (2004).

Court without authority to enforce 2010 order.

- Trial court erred in upholding the decision of a recorder's court finding the defendant in contempt of the 2010 order from an unrelated case because the uncontroverted evidence showed that the 2010 case against the defendant had been dismissed; thus, the recorder's court was divested of jurisdiction to consider the contempt motion as part of the 2013 enforcement action and lacked authority to enforce the 2010 order, which was no longer in effect. Lewis v. City of Savannah, 336 Ga. App. 126, 784 S.E.2d 1 (2016).

Criminal contempt conviction reversed.

- Defendant's criminal contempt conviction was reversed as the trial court relied on another court's ex parte immunity grant in ordering the defendant to testify and neither court made a finding that the defendant's testimony was "necessary to the public interest" as required by former O.C.G.A. § 24-9-28 (see now O.C.G.A. § 24-5-507); the state had to grant a valid immunity as broad in scope as the privilege it replaced and to show the applicability of that state immunity to the witness. In re Long, 276 Ga. App. 306, 623 S.E.2d 181 (2005).

Appeal from conviction not rendered moot.

- The Court of Appeals of Georgia rejected the state's claim that an attorney's appeal from a criminal contempt conviction was moot, based on the possible continuing adverse collateral consequences that the attorney could suffer as a result of that conviction. In re Hatfield, 290 Ga. App. 134, 658 S.E.2d 871 (2008).

Although a judge informed an attorney of the conduct found to be criminally contemptuous, because the judge not only refused to afford that attorney an opportunity to be heard, but also became involved in the controversy, the criminal contempt finding entered against the attorney had to be reversed. In re Hatfield, 290 Ga. App. 134, 658 S.E.2d 871 (2008).

Cited in Gunn v. Balkcom, 228 Ga. 802, 188 S.E.2d 500 (1972); Johnson v. State, 135 Ga. App. 360, 217 S.E.2d 618 (1975); Wiggins v. State, 139 Ga. App. 98, 227 S.E.2d 895 (1976); State v. Burroughs, 149 Ga. App. 183, 254 S.E.2d 144 (1979); Boss v. State, 152 Ga. App. 169, 262 S.E.2d 527 (1979); Rushin v. State, 154 Ga. App. 41, 267 S.E.2d 473 (1980); Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987); Cotton v. State, 263 Ga. App. 843, 589 S.E.2d 610 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 1, 11 et seq.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, §§ 3, 7, 22.

ALR.

- Degree of proof necessary in contempt proceedings, 49 A.L.R. 975.

What courts or officers have power to punish for contempt, 54 A.L.R. 318; 73 A.L.R. 1185.

Assault as contempt of court, 55 A.L.R. 1230.

Assaulting, threatening, or intimidating witness as contempt of court, 52 A.L.R.2d 1297.

Who may institute civil contempt proceedings, 61 A.L.R.2d 1083.

Acquittal of criminal charges other than contempt as precluding contempt proceedings relating to same transaction, 88 A.L.R.3d 1089.

Contempt finding as precluding substantive criminal charges relating to same transaction, 26 A.L.R.4th 950.

Oral communications insulting to particular state judge, made to third party out of judge's physical presence, as criminal contempt, 30 A.L.R.4th 155.

Failure to rise in state courtroom as constituting criminal contempt, 38 A.L.R.4th 563.

16-1-5. Presumption of innocence; standard of proof for conviction.

Every person is presumed innocent until proved guilty. No person shall be convicted of a crime unless each element of such crime is proved beyond a reasonable doubt.

(Code 1933, § 26-501, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For comment on Rehak v. Mathis, 239 Ga. 541, 238 S.E.2d 81 (1977), see 12 Ga. L. Rev. 361 (1978).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided under former Penal Code 1910, § 1010 and former Code 1933 are included in the annotations for this Code section.

Doctrine of continuity is inapplicable in criminal cases.

- Presumption of continuance, that a state of things proved to have once existed is presumed to have continued to exist until a change or some adequate cause of change appears, is not applicable to criminal cases because in criminal cases the presumption of innocence is inviolate. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972).

"Presumption of innocence" is not synonymous with "reasonable doubt of guilt."

- The presumption refers to a substantive right, which is in the nature of evidence, and the phrase "reasonable doubt" applies to a mental condition where there is an absence of the degree of proof necessary to produce mental conviction. Ealey v. State, 141 Ga. App. 94, 232 S.E.2d 620 (1977).

Defendant has right to remain silent in view of presumption of innocence. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972).

Guilt must affirmatively appear by evidence.

- One accused of crime has right to stand mute and unless it affirmatively appears by evidence that one is guilty, one cannot be legally so held. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972).

Under certain proved facts, presumption of guilt may arise.

- While presumptions arise, under certain proved facts, that a criminal charge against accused is well-founded, such presumption can never arise except upon proved facts. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972).

Medical malpractice action following crime.

- Because a patient had not been convicted of murder, no court had entered a judgment finding the patient sane at the time of the crime, and the evidence did not establish, as a matter of law, that the patient was sane when the patient killed the patient's mother, the patient was presumed innocent under O.C.G.A. § 16-1-5 and was not a "wrongdoer" whose status as such would be a bar to any of the patient's medical malpractice claims against a psychiatrist, and consequently, summary judgment on that issue or any issue relating to the patient's contributory negligence for causing the patient's mother's death was not authorized by the evidence since a jury issue existed as to whether the patient had the requisite mental capacity to commit murder. Bruscato v. O'Brien, 307 Ga. App. 452, 705 S.E.2d 275 (2010).

Failure to charge as to presumption of innocence requires new trial.

- Failure of trial judge in criminal case to charge jury to effect that defendant enters upon trial with a presumption of innocence in defendant's favor, and that this presumption remains with defendant, in the nature of evidence, until rebutted by proof satisfying jury of defendant's guilt to exclusion of reasonable doubt, is error requiring grant of new trial. Schuh v. State, 150 Ga. App. 700, 258 S.E.2d 328 (1979).

Charge that presumption remains until guilt established beyond reasonable doubt.

- It was not error to charge that defendant entered into murder trial with presumption of innocence in defendant's favor, and that presumption would remain with defendant throughout trial and until defendant's guilt was established by evidence beyond all reasonable doubt. Anderson v. State, 196 Ga. 468, 26 S.E.2d 755 (1943).

"Unless and until" included in charge.

- A charge taken almost verbatim from O.C.G.A. § 16-1-5 and concluding with the statement that no person shall be convicted of any crime "unless and until" each element of the crime is proved beyond a reasonable doubt was not defective. Roberts v. State, 267 Ga. 669, 482 S.E.2d 245 (1997).

Failure to charge that presumption covers incidents occurring before crime charged.

- It afforded no reason for granting new trial that in charging on presumption of innocence court did not also instruct jury that this presumption covered incidents in which evidence showed that defendant had participated shortly before moment of homicide. Anderson v. State, 196 Ga. 468, 26 S.E.2d 755 (1943) (decided under former Code 1933, § 26-1004; murder statute).

Omission to charge that presumption of innocence remains until overcome by proof.

- In absence of appropriate request for more specific instruction, excerpt from charge of court, in which jury were told that defendant was presumed to be innocent, and that burden was upon state to establish defendant's guilt to a moral and reasonable certainty and beyond a reasonable certainty and beyond a reasonable doubt, was not subject to exception merely because judge omitted to state to jury that presumption of innocence remained with defendant until overcome by proof. Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974).

Jury instruction on presence at scene.

- The presumption of innocence is in the nature of evidence and this evidentiary presumption is sufficient to support a proper written request for a jury instruction on mere presence at the scene. Lowe v. State, 241 Ga. App. 335, 526 S.E.2d 634 (1999).

Directed verdicts.

- If prima facie case against accused is made out, though defendant offers no evidence, court has no legal power to direct verdict, or to express opinion of defendant's guilt. Johnson v. State, 69 Ga. App. 440, 26 S.E.2d 121 (1943) (decided under former Code 1933).

At sentencing phase of trial there is no presumption of innocence.

- During sentencing phase of defendant's trial, the defendant, having already been convicted of crimes, benefits from no presumption of innocence. Defendant stands before sentencing jury as a convicted felon. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982).

On appeals from findings of guilt, presumption of innocence no longer prevails; the fact finders have determined the credibility of witnesses, and have been convinced beyond a reasonable doubt, and appellate courts review evidence only to determine if there is any evidence sufficient to authorize fact finder to return verdict of guilty. Stallworth v. State, 150 Ga. App. 766, 258 S.E.2d 611 (1979).

Cited in Spencer v. State, 231 Ga. 705, 203 S.E.2d 856 (1974); Ford v. State, 232 Ga. 511, 207 S.E.2d 494 (1974); Woods v. State, 233 Ga. 347, 211 S.E.2d 300 (1974); Royal v. State, 134 Ga. App. 203, 213 S.E.2d 561 (1975); Franklin v. State, 136 Ga. App. 47, 220 S.E.2d 60 (1975); Berryhill v. State, 235 Ga. 549, 221 S.E.2d 185 (1975); Parker v. State, 137 Ga. App. 6, 223 S.E.2d 6 (1975); Carter v. State, 137 Ga. App. 824, 225 S.E.2d 73 (1976); Wiggins v. State, 139 Ga. App. 98, 227 S.E.2d 895 (1976); Dasher v. State, 140 Ga. App. 517, 231 S.E.2d 510 (1976); Futch v. State, 145 Ga. App. 485, 243 S.E.2d 621 (1978); Davis v. State, 147 Ga. App. 107, 248 S.E.2d 181 (1978); Ault v. State, 148 Ga. App. 761, 252 S.E.2d 668 (1979); Moreland v. State, 154 Ga. App. 375, 268 S.E.2d 425 (1980); Wallace v. State, 246 Ga. 738, 273 S.E.2d 143 (1980); Cole v. State, 156 Ga. App. 288, 274 S.E.2d 685 (1980); Phillips v. State, 162 Ga. App. 471, 291 S.E.2d 776 (1982); Bowman v. State, 186 Ga. App. 544, 368 S.E.2d 143 (1988); Kersey v. State, 243 Ga. App. 689, 534 S.E.2d 428 (2000).

Proof Beyond Reasonable Doubt

Reasonable doubt means such doubt as a reasonable man would have after hearing all testimony in the case, including statement of defendant. Faulkner v. State, 43 Ga. App. 763, 160 S.E. 117 (1931);(decided under former Penal Code 1910, § 1010).

Definition of phrase unnecessary.

- It is not necessary to attempt any definition of the phrase "reasonable doubt"; the words are self-explanatory, and simplicity would be rendered confusing, and meaning obscure, by any elaboration. Cason v. State, 60 Ga. App. 626, 4 S.E.2d 713 (1939) (decided under former Code 1933 and organic law); Brooks v. State, 63 Ga. App. 575, 11 S.E.2d 688 (1940);.

An otherwise correct charge in a criminal case on reasonable doubt is not reversible error because the term reasonable doubt is not defined. Brock v. State, 91 Ga. App. 141, 85 S.E.2d 177 (1954) (decided under former Code 1933).

It is not error in absence of a request, to fail to attempt a definition of the words "reasonable doubt." McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633 (1948) (decided under former Code 1933 and organic law).

Court did not err in failing to give to jury a definition of reasonable doubt, where there was no written request for such definition; it was sufficient to charge that jury must be satisfied by evidence beyond a reasonable doubt of defendant's guilt. Fountain v. State, 71 Ga. App. 191, 30 S.E.2d 359 (1944) (decided under former Code 1933).

"Reasonable doubt" need not be defined absent request.

- "Reasonable doubt" has often been held to be a self-explanatory term, readily understandable by the average juror, for which no further definition need be given in absence of request. Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974).

Moral and reasonable certainty.

- The trial court's charge to the jury that "moral and reasonable certainty is all that can be required in a legal investigation" did not effectively permit the jury to convict defendant on a standard of proof which is less than the standard of "beyond a reasonable doubt". Marion v. State, 263 Ga. 358, 434 S.E.2d 463 (1993).

Phrase "to extent required by law" rather than "beyond reasonable doubt."

- Where jury was repeatedly instructed throughout trial court's charge that state had to prove each and every element of its case against defendant beyond a reasonable doubt, jury instruction that prosecution had to disprove defendant's claim of right "to extent required by law" instead of "beyond a reasonable doubt," did not constitute reversible error by trial court. Jackson v. State, 157 Ga. App. 581, 278 S.E.2d 156 (1981).

Language "reasonable doubt" or "without any reservations" in closing argument.

- Statement in closing argument that "unless you can honestly say without any reservations or qualifications that the state has proven the defendant guilty beyond a reasonable doubt, then you must acquit" was closer to the applicable law than the statement, "unless you can honestly say, 'yes, the defendant did it,' without any reservations or any qualifications, then you must acquit." Thus, the trial court properly prohibited defense counsel from making the latter statement when the court allowed defense counsel to make the former statement. Allen v. State, 292 Ga. App. 133, 663 S.E.2d 370 (2008), aff'd, 286 Ga. 273, 687 S.E.2d 417 (2009).

Relevant question in criminal prosecution is whether after viewing evidence in light most favorable to prosecution, any rational trier of fact could have found essential elements of crime beyond a reasonable doubt. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475 (1981).

Effect of conflicting testimony.

- While there may be conflicts in testimony of witnesses at trial, a rational trier of fact, in certain cases, may still reasonably find from evidence adduced at trial proof of defendant's guilt beyond a reasonable doubt. Hammonds v. State, 157 Ga. App. 393, 277 S.E.2d 762 (1981).

It is error to fail to charge on quantum of proof necessary to establish guilt beyond a reasonable doubt. Brock v. State, 91 Ga. App. 141, 85 S.E.2d 177 (1954).

Jury instructions.

- The charge as a whole accurately conveyed the concept of reasonable doubt to the jury. Ruff v. State, 212 Ga. App. 245, 441 S.E.2d 534 (1994).

Court need not instruct on reasonable doubt as to each proposition of case.

- According to Georgia practice, it is not the duty of the court to carve up case into different propositions and instruct jury specifically on each as to reasonable doubt, but to submit case as a whole, upon all evidence, and instruct upon subject of doubt, in appropriate terms, upon whole case. Geer v. State, 184 Ga. 805, 193 S.E. 776 (1937).

Where in criminal trial judge fully and fairly charged jury concerning law of reasonable doubt, the judge was not bound to give requested instruction, in effect, that if jury had a reasonable doubt as to existence of some particular and specially enumerated fact, or what should be the proper inference therefrom, it would be their duty to give the accused the benefit of such doubt. Pierce v. State, 66 Ga. App. 737, 19 S.E.2d 192 (1942).

Charge that reasonable doubt is actual doubt that one is conscious of is not erroneous. Hancock v. State, 196 Ga. 351, 26 S.E.2d 760 (1943).

Phrase "doubt for which you can give reason."

- In charge of court on subject of reasonable doubt, it was not error to include the phrase, "a doubt for which you can give a reason." Bryant v. State, 197 Ga. 641, 30 S.E.2d 259 (1944).

Charge that reasonable doubt is doubt with a reason, not a vague, artificial, or fictitious doubt is not erroneous in that it restricts meaning of reasonable doubt to instances in which juror finds affirmative reason. Jackson v. State, 59 Ga. App. 344, 200 S.E. 808 (1939).

Defendant need only raise reasonable doubt in minds of jury.

- Defendant is required only to raise in minds of jury a reasonable doubt as to defendant's guilt, even though state has by evidence first proved its case beyond a reasonable doubt; there is no requirement that defendant rebut case thus made by state to reasonable satisfaction of jury. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936).

Introduction that jurors should "acquit defendant" if their minds were wavering, unsettled, or unsatisfied was not misleading or unconstitutional. Tyson v. State, 217 Ga. App. 428, 457 S.E.2d 690 (1995).

Charge that defendant must rebut case made by state.

- Charge "if . . . defendant has to your reasonable satisfaction rebutted case as made by state, it would be your duty to find defendant not guilty . . ." placed burden on defendant to rebut evidence produced by state, in proof of homicide, to reasonable satisfaction of jury, whereas defendant was only required to create in minds of jury reasonable doubt as to truth of charge against defendant, and this constituted grounds for new trial. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936).

Evidence sufficient to support guilt beyond a reasonable doubt.

- Sufficient evidence was presented to sustain defendant's conviction for selling cocaine because unrefuted testimony from an undercover agent identifying the defendant as the seller of the cocaine purchased in a controlled buy conducted by the agent was corroborated by an audio tape and the testimony of other officers at the scene. Moreover, the defendant failed to present any evidence on appeal that the state failed to prove guilt beyond a reasonable doubt. Thompson v. State, 289 Ga. App. 387, 657 S.E.2d 296 (2008).

RESEARCH REFERENCES

Am. Jur. 2d.

- 16B Am. Jur. 2d, Constitutional Law, § 1016. 29 Am. Jur. 2d, Evidence, §§ 185 et seq., 227 et seq.

C.J.S.

- 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 981, 982. 23A C.J.S., Criminal Procedure and Rights of the Accused, § 1562.

ALR.

- Propriety of instructions as to the significance of evidence concerning the defendant's good character as an element bearing upon the question of reasonable doubt, 10 A.L.R. 8; 68 A.L.R. 1068.

Degree of proof necessary in contempt proceedings, 49 A.L.R. 975.

Instruction applying rule of reasonable doubt specifically to particular matter or defense as curing instruction placing burden of proof upon defendant in that regard, 120 A.L.R. 591.

Rule of reasonable doubt as applicable to reasonable doubt on part of individual juror, 137 A.L.R. 394.

Use of term "actual doubt" in instruction on reasonable doubt, 147 A.L.R. 1046.

Presumption of innocence as evidence, 152 A.L.R. 626.

Conviction of possession of illicit drugs found in premises of which defendant was in nonexclusive possession, 56 A.L.R.3d 948.

Burden of proof as to lack of license in criminal prosecution for carrying or possession of weapon without license, 69 A.L.R.3d 1054.

Admissibility of evidence of subsequent criminal offenses as affected by proximity as to time and place, 92 A.L.R.3d 545.

16-1-6. Conviction for lesser included offenses.

An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when:

  1. It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or
  2. It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

(Code 1933, § 26-505, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey on criminal law and procedure, 42 Mercer L. Rev. 141 (1990). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970).

JUDICIAL DECISIONS

General Consideration

Statutes controlling double jeopardy questions.

- Ga. L. 1968, p. 1249 extends proscription of double jeopardy beyond that provided for in United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must be determined under proscriptions of former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8). State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975).

Former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) provide expanded statutory test for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6 through16-1-8, which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).

Statutes controlling double jeopardy questions.

- Where a defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution, as these acts occurred at different times and locations with distinct quantities of contraband, even though defendant might have at some earlier time possessed all the marijuana in defendant's home. Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004).

Successive state and municipal prosecutions.

- In creating expanded statutory protection against being twice placed in jeopardy for same offense, the legislature intended former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) to affect only successive prosecutions for state crimes and not successive state and municipal prosecutions. State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979).

Criminal indictments are not deemed amendable to conform to the evidence. State v. Hightower, 252 Ga. 220, 312 S.E.2d 610 (1984).

Conviction in different county.

- A prosecution for a lesser included offense, which includes the underlying felony in a felony murder case, after a conviction for the greater offense in a different county violates O.C.G.A. § 16-1-6(a), Ga. Const. 1983, Art. I, Sec. I, Par. XVIII, and the Fifth and Fourteenth Amendments to the United States Constitution. Perkinson v. State, 273 Ga. 491, 542 S.E.2d 92 (2001).

Distinction between two aspects of double jeopardy.

- Former Code 1933 §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) distinguish between two aspects of double jeopardy: first, limitations upon multiple prosecutions for crimes arising from same conduct (referred to as procedural bar of double jeopardy); and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes (referred to as substantive bar of double jeopardy). Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Forfeiture proceedings not a bar to prosecution.

- Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22, 464 S.E.2d 19 (1995).

Applicability to crimes.

- Inclusion provisions of O.C.G.A. § 16-1-6 do not apply to aggravating circumstances but to crimes. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Accused may be convicted of a crime included in a crime charged in the indictment or accusation, and that a crime is so included when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged. Morast v. State, 323 Ga. App. 808, 748 S.E.2d 287 (2013).

O.C.G.A. § 16-1-6 makes no attempt to detail all instances where one offense is not included within another. Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981).

Ga. L. 1968, p. 1249, § 1 (see now O.C.G.A. §§ 16-1-6 and16-1-7) establishes alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975); Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).

Under O.C.G.A. § 16-1-6(1), offenses merge as a matter of fact if one of them is established by proof of the same or less than all the facts required to prove the other; under Georgia law, multiple punishment is prohibited if one offense is included in the other as a matter of law or fact. Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003).

Former Code 1933, § 26-505(1) set out rules for determining included crimes as a matter of fact. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Former Code 1933, § 26-505(2) set out rules for determining included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Multiple conviction prohibited where crimes charged are same in law or fact.

- Although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980).

A crime is an included crime and multiple punishment is barred if it is the same as a matter of fact or as a matter of law. Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).

Verdicts for aggravated assault and involuntary manslaughter/reckless conduct not inconsistent.

- When the evidence authorizes a finding that a defendant's reckless conduct is an included crime in an aggravated assault, the verdicts finding the defendant guilty of both of those offenses are not mutually exclusive. Thus, Jackson v. State, 276 Ga. 408, 577 S.E.2d 570 (2003), is overruled. State v. Springer, 297 Ga. 376, 774 S.E.2d 106 (2015).

When the facts supporting two counts are the same.

- When the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under O.C.G.A. § 16-1-6. Haynes v. State, 249 Ga. 119, 288 S.E.2d 185 (1982), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006); Phillips v. State, 162 Ga. App. 199, 290 S.E.2d 142 (1982); Jones v. State, 185 Ga. App. 595, 365 S.E.2d 153 (1988); Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888, cert. denied, 189 Ga. App. 911, 376 S.E.2d 888 (1989); Montes v. State, 262 Ga. 473, 421 S.E.2d 710 (1992).

If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of law, and the defendant may not be sentenced for both. Chadwick v. State, 236 Ga. App. 199, 511 S.E.2d 286 (1999).

Elements of lesser included offense.

- A crime will constitute a lesser included offense as a matter of law when, inter alia, it differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or public interest or a lesser kind of culpability suffices to establish its commission. Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160, 465 S.E.2d 668 (1996).

Supreme Court of Georgia utilizes alternative test.

- Supreme Court of Georgia utilizes more lenient alternative test, rather than narrower conjunctive standard prevailing in federal courts. A crime is included within another if, as a matter of fact or, alternatively, as a matter of law, conditions stipulated by former Code 1933, § 26-505 are satisfied. The conjunctive test requires that conditions be satisfied both as a matter of fact and as a matter of law before one crime will be held to be included within another. Ramsey v. State, 145 Ga. App. 60, 243 S.E.2d 555, rev'd on other grounds, 241 Ga. 426, 246 S.E.2d 190 (1978).

One crime is not included within another if each affects a different person. Harshaw v. State, 134 Ga. App. 581, 215 S.E.2d 337 (1975).

Most obvious example of noninclusion is when crime is charged in separate count of indictment as having been committed upon another person. Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981).

When incidents are factually and legally distinct.

- When two separate incidents are involved, each established by proof of different facts and distinct as a matter of law, the possibility of inclusion is obviated. Ramsey v. State, 145 Ga. App. 60, 243 S.E.2d 555, rev'd on other grounds, 241 Ga. 426, 246 S.E.2d 190 (1978).

Required evidence test adopted.

- In determining when one crime is included in another under O.C.G.A. §§ 16-1-6(1) and16-1-7(a), the actual evidence test has been overruled and replaced with the Blockburger required evidence test, as this is consistent with the statutory framework of O.C.G.A. § 16-1-6(1), which speaks of required elements. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Using up evidence that defendant committed one crime in establishing another.

- If the state uses up all of the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact. Dawson v. State, 203 Ga. App. 146, 416 S.E.2d 125, cert. denied, 203 Ga. App. 905, 416 S.E.2d 125 (1992).

Actual evidence test meant that if the state used up all the evidence that the defendant committed one crime in establishing another crime, the former crime was included in the latter as a matter of fact under O.C.G.A. § 16-1-6. Ruffin v. State, 252 Ga. App. 289, 556 S.E.2d 191 (2001).

Question of whether there was a factual merger of crimes is determined by looking to the actual evidence introduced at trial to determine whether a crime is established by proof of the same or fewer than all the facts required to establish the commission of another crime within the meaning of O.C.G.A. § 16-1-6; if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under O.C.G.A. § 16-1-6. Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003).

Retrial of greater offense after conviction of lesser.

- When the state sought to prosecute the defendant on two offenses in a single prosecution, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Bell v. State, 249 Ga. 644, 292 S.E.2d 402 (1982).

Conviction of lesser included misdemeanor not ground for new trial.

- It is not ground for new trial that on felony indictment defendant may be convicted of lesser included crime which is itself only a misdemeanor. Ennis v. State, 130 Ga. App. 716, 204 S.E.2d 519 (1974).

No issue of fact as to whether one crime included in another.

- Court did not err in failing to instruct the jury to decide which one of the offenses charged in the indictment or of the lesser included offense to find defendant guilty of. There was no issue of fact as to whether one crime was included in another and the court was not required to charge on O.C.G.A. § 16-1-6. Leslie v. State, 211 Ga. App. 871, 440 S.E.2d 757 (1994).

To warrant conviction of lesser offense on indictment or information charging greater offense, it is essential that allegations describing greater offense contain all essential averments relating to lesser offense or that greater offense necessarily include all essential ingredients of lesser. Williams v. State, 144 Ga. App. 130, 240 S.E.2d 890 (1977); Tuggle v. State, 145 Ga. App. 603, 244 S.E.2d 131 (1978).

Rule of inclusion.

- Even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Messick v. State, 209 Ga. App. 459, 433 S.E.2d 595 (1993).

Improper merger.

- Trial court erred in merging the conviction requiring a greater injury into that which required the lesser injury. Zamudio v. State, 332 Ga. App. 37, 771 S.E.2d 733 (2015).

Effect of conviction on nonincluded charge.

- After a jury convicted a defendant on an aggravated battery charge, but acquitted the defendant on charges of obstruction, simple battery, and aggravated assault and could not reach a verdict on a second charge of aggravated assault, the jury's inability to reach a verdict on the second aggravated assault charge, a lesser included offense, did not invalidate the jury verdict on the aggravated battery charge. Collier v. State, 195 Ga. App. 380, 393 S.E.2d 509 (1990).

Sequential assaults held to be two offenses, the first a completed crime when the second was perpetrated. Talley v. State, 164 Ga. App. 150, 296 S.E.2d 173 (1982), aff'd, 251 Ga. 42, 302 S.E.2d 355 (1983).

Conviction of both crime charged and lesser included offense.

- Defendant may be prosecuted for each crime arising from same conduct, but may not be convicted of more than one crime if one crime is included in the other. Addison v. State, 239 Ga. 622, 238 S.E.2d 411 (1977).

Under O.C.G.A. §§ 16-1-6 and16-1-7, a defendant may be prosecuted for two crimes based on the same conduct, but defendant may not be convicted of more than one crime if one crime is included in the other. Padgett v. State, 205 Ga. App. 576, 423 S.E.2d 411 (1992).

Defendant on notice of lesser included crimes.

- As a matter of law a defendant is on notice of lesser crimes which are included in the crime charged, and the defendant's due process rights were therefore not violated where remand for an adjudication of delinquency was made, based on a lesser included offense, after vacation of a conviction on the more serious offense. In re A.F., 236 Ga. App. 60, 510 S.E.2d 910 (1999).

Trial court did not err by granting the state's request to charge the jury on robbery by sudden snatching, and the defendant's due process rights were not violated as: (1) the indictment alleging armed robbery gave the defendant sufficient notice; (2) the essential elements of both armed robbery and robbery by sudden snatching were contained within the indictment; (3) robbery by sudden snatching was a lesser included offense of armed robbery as a matter of law; and (4) the defendant conceded that the trial evidence supported such a charge. Millender v. State, 286 Ga. App. 331, 648 S.E.2d 777 (2007), cert. denied, No. S07C1717, 2008 Ga. LEXIS 80 (Ga. 2008).

Trial court did not err in failing to merge the defendant's convictions for the criminal damage to property in the first degree and criminal damage to property in the second degree because, although the charges were defined by degrees, the statutes prohibited different risks of injury - knowing interference with property in a manner that endangered human life and a certain level of damage to the property. Sullivan v. State, 331 Ga. App. 592, 771 S.E.2d 237 (2015).

Sentences for offenses not considered.

- Statutes pertaining to lesser included offenses and multiple prosecutions for the same conduct do not purport to make any offense a greater offense, either as a matter of law or fact, solely because violation thereof mandates or otherwise results in the imposition of a greater sentence, or to make any offense a lesser included offense merely because a lesser sentence was statutorily authorized for the statute's violation. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).

Cited in Wells v. State, 127 Ga. App. 109, 192 S.E.2d 567 (1972); Fallings v. State, 232 Ga. 798, 209 S.E.2d 151 (1974); Williamson v. State, 134 Ga. App. 583, 215 S.E.2d 518 (1975); Kramer v. Hopper, 234 Ga. 395, 216 S.E.2d 119 (1975); D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975); Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976); Thomas v. State, 237 Ga. 690, 229 S.E.2d 458 (1976); Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977); Perkins v. State, 143 Ga. App. 124, 237 S.E.2d 658 (1977); Butler v. State, 239 Ga. 591, 238 S.E.2d 387 (1977); Corson v. State, 144 Ga. App. 559, 241 S.E.2d 454 (1978); Lowe v. State, 240 Ga. 767, 242 S.E.2d 582 (1978); State v. Gilder, 145 Ga. App. 731, 245 S.E.2d 3 (1978); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978); Coaxum v. State, 146 Ga. App. 370, 246 S.E.2d 403 (1978); State v. Burroughs, 149 Ga. App. 183, 254 S.E.2d 144 (1979); Groves v. State, 152 Ga. App. 606, 263 S.E.2d 501 (1979); Duke v. State, 153 Ga. App. 204, 264 S.E.2d 721 (1980); Doucet v. State, 153 Ga. App. 775, 266 S.E.2d 554 (1980); Griffeth v. State, 154 Ga. App. 643, 269 S.E.2d 501 (1980); Powell v. State, 154 Ga. App. 674, 270 S.E.2d 6 (1980); High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981); Taylor v. State, 157 Ga. App. 212, 276 S.E.2d 691 (1981); Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981); Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981); Head v. State, 248 Ga. App. 767, 285 S.E.2d 735 (1981); Jones v. State, 161 Ga. App. 620, 288 S.E.2d 795 (1982); Dalton v. State, 162 Ga. App. 7, 289 S.E.2d 801 (1982); Williams v. State, 162 Ga. App. 350, 291 S.E.2d 425 (1982); Dalton v. State, 249 Ga. 720, 292 S.E.2d 834 (1982); Smith v. State, 163 Ga. App. 531, 295 S.E.2d 208 (1982); Collins v. State, 164 Ga. App. 482, 297 S.E.2d 503 (1982); Dickson v. State, 167 Ga. App. 685, 307 S.E.2d 267 (1983); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); Caldwell v. State, 171 Ga. App. 680, 320 S.E.2d 888 (1984); Weaver v. State, 176 Ga. App. 639, 337 S.E.2d 420 (1985); Clarington v. State, 178 Ga. App. 663, 344 S.E.2d 485 (1986); Rank v. State, 179 Ga. App. 28, 345 S.E.2d 75 (1986); McClure v. State, 179 Ga. App. 245, 345 S.E.2d 922 (1986); Preston v. State, 257 Ga. 42, 354 S.E.2d 135 (1987); Sablon v. State, 182 Ga. App. 128, 355 S.E.2d 88 (1987); Mathis v. State, 184 Ga. App. 455, 361 S.E.2d 856 (1987); Edwards v. State, 258 Ga. 12, 364 S.E.2d 869 (1988); Moore v. State, 190 Ga. App. 278, 378 S.E.2d 880 (1989); Iglesias v. State, 191 Ga. App. 403, 381 S.E.2d 604 (1989); State v. Evans, 192 Ga. App. 216, 384 S.E.2d 404 (1989); Redding v. State, 196 Ga. App. 751, 397 S.E.2d 34 (1990); Kennedy v. State, 199 Ga. App. 803, 406 S.E.2d 136 (1991); Head v. State, 262 Ga. 795, 426 S.E.2d 547 (1993); Woody v. State, 212 Ga. App. 186, 441 S.E.2d 505 (1994); King v. State, 214 Ga. App. 311, 447 S.E.2d 645 (1994); Golden v. State, 233 Ga. App. 703, 505 S.E.2d 242 (1998); Powles v. State, 248 Ga. App. 4, 545 S.E.2d 153 (2001); Dorsey v. State, 251 Ga. App. 640, 554 S.E.2d 278 (2001); Climpson v. State, 253 Ga. App. 485, 559 S.E.2d 495 (2002); Williams v. State, 255 Ga. App. 775, 566 S.E.2d 477 (2002); Lewis v. State, 261 Ga. App. 273, 582 S.E.2d 222 (2003); Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004); Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004); Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006); Guyton v. State, 281 Ga. 789, 642 S.E.2d 67 (2007); Arnold v. State, 293 Ga. App. 395, 667 S.E.2d 167 (2008); Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008); Epps v. State, 297 Ga. App. 66, 676 S.E.2d 791 (2009); Gonzales v. State, 298 Ga. App. 821, 681 S.E.2d 248 (2009); Strickland v. State, 300 Ga. App. 898, 686 S.E.2d 486 (2009); Stepp v. State, 286 Ga. 556, 690 S.E.2d 161 (2010); State v. Wilson, 318 Ga. App. 88, 732 S.E.2d 330 (2012); State v. Pruiett, 324 Ga. App. 789, 751 S.E.2d 579 (2013); State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014); Henderson v. State, 333 Ga. App. 759, 777 S.E.2d 48 (2015); Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017); Woods v. State, 342 Ga. App. 301, 802 S.E.2d 822 (2017); Vasquez v. State, 306 Ga. 216, 830 S.E.2d 143 (2019).

Armed Robbery

Aggravated assault and armed robbery as separate crimes.

- Aggravated assault and armed robbery differ in more ways than that a less serious injury or risk of injury or a lesser kind of culpability, applies to one crime than the other. Thus, aggravated assault is not included in armed robbery as a matter of law. Harvey v. State, 233 Ga. 41, 209 S.E.2d 587 (1974).

Aggravated assault and armed robbery may not be different crimes as a matter of fact. Lambert v. State, 157 Ga. App. 275, 277 S.E.2d 66 (1981).

Aggravated assault and armed robbery are different crimes as a matter of law. Lambert v. State, 157 Ga. App. 275, 277 S.E.2d 66 (1981).

Aggravated assault was not included within armed robbery as a matter of fact. Evans v. State, 173 Ga. App. 655, 327 S.E.2d 784 (1985).

Conviction for aggravated assault did not merge with conviction for armed robbery where the evidence showed that the defendant had completed the armed robbery at the time defendant assaulted the security guard. Loumakis v. State, 179 Ga. App. 294, 346 S.E.2d 373 (1986).

Offenses of aggravated assault and robbery did not merge as a matter of law, where although the occurrences happened within a short span of time, the robbery had been completed at the time defendant fired a gun and involved different actions and intents. Phelps v. State, 194 Ga. App. 493, 390 S.E.2d 899 (1990).

Aggravated assaults did not merge with the robbery of two victims, where the robberies were completed, both victims having been deprived of their property, when they were marched off for another criminal purpose and the aggravated assaults on each victim occurred. Glass v. State, 199 Ga. App. 530, 405 S.E.2d 522 (1991).

In a trial for armed robbery and aggravated assault, the evidence showed that defendant forced the victim at knifepoint to open the safe and that after taking the money from the safe, defendant cut the victim during the victim's attempt to escape. Since the act which constituted the offense of armed robbery was proved without any reference to the act which constituted the aggravated assault, no merger occurred. Holmes v. State, 205 Ga. App. 168, 421 S.E.2d 311 (1992).

Trial court did not err by failing to merge the defendants' convictions on counts one through five into one conviction for armed robbery because the aggravated assaults and armed robbery (none of which could have been proven by the same or less than all the facts required to prove another) occurred later and the facts required to prove those offenses were separate from the burglary. Dunbar v. State, 273 Ga. App. 29, 614 S.E.2d 472 (2005).

Evidence that the victim was beaten over the head with a pistol showed a completed aggravated assault prior to the armed robbery which was also committed with a pistol; in other words, the pistol was used to effect bodily harm as well as to effect a theft. Since separate facts were used to prove each crime, the trial court did not err by refusing to merge the offenses under O.C.G.A. § 16-1-6. Bunkley v. State, 278 Ga. App. 450, 629 S.E.2d 112 (2006).

As the armed robberies and aggravated assaults the defendant was charged with were committed against different victims, the crimes did not merge as a matter of law or fact. Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009).

Facts used to convict of armed robbery and aggravated assault.

- Where facts adduced to support armed robbery charge were same facts used to support aggravated assault charge, aggravated assault charge must be considered an included offense with armed robbery charge pursuant to former Code 1933, § 26-505. Hizine v. State, 148 Ga. App. 375, 251 S.E.2d 393 (1978) (see O.C.G.A. § 16-1-6).

Aggravated assault with intent to rob and armed robbery.

- Because all of the facts used to prove the offense of aggravated assault with intent to rob were used up in proving the armed robbery, merger was required. Mercer v. State, 289 Ga. App. 606, 658 S.E.2d 173 (2008).

Separate convictions for armed robbery and aggravated assault were barred, and conviction for the latter offense would have to be vacated, where the only aggravated assault shown by the evidence was that by which the commission of the armed robbery was effectuated. Young v. State, 177 Ga. App. 756, 341 S.E.2d 286 (1986).

Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger since the only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362, 373 S.E.2d 63 (1988); Head v. State, 202 Ga. App. 209, 413 S.E.2d 533 (1991).

Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger since the only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362, 373 S.E.2d 63 (1988); Head v. State, 202 Ga. App. 209, 413 S.E.2d 533 (1991).

Defendants' robbery and aggravated assault convictions, under O.C.G.A. §§ 16-5-21 and16-8-40, merged because, while aggravated assault did not require taking property from another, aggravated assault was proved by the same or less than all facts required to show robbery, as the assault forming the basis of the aggravated assault with intent to rob, which was pointing a pistol at the victim, was "contained within" the element of robbery requiring the defendants to have used force, intimidation, threat or coercion, or placed the victim in fear of immediate serious bodily injury. Washington v. State, 310 Ga. App. 775, 714 S.E.2d 364 (2011).

Defendant's conviction for aggravated assault merged into the defendant's conviction for attempted armed robbery because the relevant aggravated assault provision did not require proof of any fact that was not also required to prove the attempted armed robbery as that offense could have been proved under the indictment in the case. Garland v. State, 311 Ga. App. 7, 714 S.E.2d 707 (2011).

Aggravated assault and armed robbery convictions merged as the assault count did not require proof of any fact not required to prove armed robbery. Newsome v. State, 324 Ga. App. 665, 751 S.E.2d 474 (2013).

Because a habeas applicant's crimes of aggravated assault with intent to rob and armed robbery occurred at the same time and resulted from the same conduct, the applicant's holding a store owner at gunpoint, taking money from the cash register, and fleeing, the two offenses merged; the assault conviction and sentence should have been set aside. Johnson v. Williams, 304 Ga. 771, 22 S.E.2d 264 (2018).

Armed robbery and motor vehicle theft.

- After the defendant took two checks from the victim at knife point and, later, after defendant tied up the victim and left the victim in the bedroom, took the victim's keys and drove off in the victim's car, the motor vehicle theft was not a lesser included offense of the armed robbery. Fonseca v. State, 212 Ga. App. 463, 441 S.E.2d 912 (1994).

Burglary and armed robbery.

- There is no prohibition against a defendant's being convicted of both burglary and a completed criminal offense, such as armed robbery, after gaining entry into the dwelling, as each offense has distinct elements. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991).

Because defendant's one entry into the victim's house was committed with a dual intent to commit theft and aggravated assault, the trial court should not have imposed two separate sentences for the two burglary charges based on the two intents, and instead should have merged the burglary counts for sentencing. However, merger of an aggravated robbery charge was properly rejected. Ward v. State, 339 Ga. App. 621, 794 S.E.2d 246 (2016).

Assault and robbery.

- When facts adduced to support the two counts are different, assault is not included within robbery. Harvey v. State, 233 Ga. 41, 209 S.E.2d 587 (1974); Dunbar v. State, 163 Ga. App. 243, 292 S.E.2d 897 (1982).

Armed robbery and kidnapping.

- Kidnapping was completed when defendant seized the women and forcibly moved them from one location in the store to another, and then defendant committed the armed robbery; accordingly, convictions for both offenses did not amount to two punishments for the same conduct, nor was one offense included in the other as a matter of fact. Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003).

Conviction for attempt to commit armed robbery did not merge with conviction for armed robbery since, although both offenses occurred at the same place and at the same time and under the same circumstances, the object of the offenses was different and the victims were different. Loumakis v. State, 179 Ga. App. 294, 346 S.E.2d 373 (1986).

Armed robbery and malice murder.

- In considering whether two crimes merged as a matter of fact, the courts look to whether the crimes were established by proof of the same or less than all the facts required to establish the commission of another crime; since convictions for armed robbery and malice murder were both supported by the evidence, they did not merge as a matter of fact. Baines v. State, 276 Ga. 117, 575 S.E.2d 495 (2003).

Armed robbery and robbery by intimidation.

- Defendant's indictment for armed robbery put defendant on notice that conviction of the lesser included offense of robbery by intimidation was possible. Mills v. State, 244 Ga. App. 28, 535 S.E.2d 1 (2000).

Armed robbery and theft by taking.

- Since the same evidence that was used to prove the armed robbery charges against defendant was also used to prove the theft by taking charges and the property in question was taken from the victims' possession in the same incident in a store and constituted a single crime, the theft by taking offenses were lesser included offenses of the armed robbery offenses as a matter of fact pursuant to O.C.G.A. § 16-1-6(1) and should have merged into those convictions for sentencing purposes. Phanamixay v. State, 260 Ga. App. 177, 581 S.E.2d 286 (2003).

Armed robbery and aggravated battery did not merge.

- Trial court did not err in failing to merge the defendant's aggravated battery conviction into the defendant's armed robbery conviction because the taking of the victim's property was not a fact required to establish the aggravated battery offense, and depriving the victim of a member of the victim's body was not a fact required to establish the armed robbery offense; and, while the aggravated battery and armed robbery were based on the same criminal transaction, aggravated battery and armed robbery did not simply prohibit different degrees of injury or risk of injury; rather, the two crimes prohibited entirely different categories of injury - depriving the victim of a member of the victim's body versus depriving the victim of property. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).

Sentencing.

- Since the evidence the state used to convict defendant of aggravated assault with intent to rob and possession of a firearm during the commission of that crime was also used to convict defendant of armed robbery, defendant could not be sentenced for all of the offenses, and, accordingly, the first two offenses merged into the armed robbery offense for sentencing purposes. Cutkelvin v. State, 258 Ga. App. 691, 574 S.E.2d 883 (2002).

Assault

Aggravated assault properly not merged with theft by taking.

- Trial court properly refused to merge an aggravated assault count with a theft by taking of a motor vehicle count and did not err in sentencing the defendant for both offenses because by choking the victim in a manner likely to have caused serious bodily injury, the defendant committed aggravated assault, and by taking the victim's car and driving away, the defendant committed the theft. As such, it was obvious that the offenses involved, although taking place at the same general time and location, were separate offenses in that each was established by proof of different facts and each offense was distinct as a matter of law; thus, obviating any possibility of one's inclusion in the other. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).

Robbery by force and aggravated assault on a person over the age of 65 years have different elements and prohibit different conduct, and neither is included in the other as a matter of law. Manuel v. State, 245 Ga. App. 565, 538 S.E.2d 472 (2000).

Criminal trespass and aggravated assault.

- Criminal trespass is not a lesser included offense of aggravated assault as a matter of law, and, where the indictment for aggravated assault alleged that defendant committed an assault by shooting a deadly weapon "at, toward and in the direction of" the victim, the state was not required to prove that defendant interfered with the victim's property, and criminal trespass was the victim's property, and criminal trespass was not an included offense as a matter of fact. Robinson v. State, 217 Ga. App. 832, 459 S.E.2d 588 (1995).

Aggravated assault did not merge with damage to property.

- Because charges alleging aggravated assault did not amount to lesser-included offenses as a matter of fact of a charge of first-degree criminal damage to property, and the property offense was not a lesser-included offense of any aggravated assault offense, merger of the offenses was unwarranted. Louis v. State, 290 Ga. App. 106, 658 S.E.2d 897 (2008).

Reckless conduct and aggravated assault.

- Reckless conduct may become a lesser included offense of aggravated assault, not necessarily by the adding or subtracting of elements, but merely the substitution of another element for that of any formed general intent to commit the greater offense thereby resulting, in essence, in a finding of a lesser degree of culpability within the meaning of O.C.G.A. § 16-1-6. Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160, 465 S.E.2d 668 (1996); Idowu v. State, 233 Ga. App. 418, 504 S.E.2d 474 (1998).

Because the defendant drove the van and struck and injured the victim, the state charged the defendant with aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury, and because the offense of reckless conduct would not show a less culpable mental state than that which was required to establish the commission of aggravated assault as charged, a charge on reckless conduct was not warranted. Patterson v. State, 332 Ga. App. 221, 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491, 789 S.E.2d 175 (2016).

Aggravated assault merged into aggravated battery.

- Because the indictment alleged only one act, the shooting of the victim, and because the evidence showed only that defendant's actions were the result of a single act of firing a series of shots in quick succession at the victim, the convictions for aggravated assault merged into the aggravated battery. Brown v. State, 246 Ga. App. 60, 539 S.E.2d 545 (2000).

Trial court erred in failing to merge a defendant's offenses of aggravated battery under O.C.G.A. § 16-5-24(a) and aggravated assault under O.C.G.A. § 16-5-21(a), for sentencing purposes, because the assault was a lesser included offense of the battery offense under O.C.G.A. § 16-1-6(1), given the defendant's single attack on the victim with a golf club. Allen v. State, 302 Ga. App. 190, 690 S.E.2d 492 (2010).

Defendant's aggravated battery and aggravated assault convictions merged because the counts of the indictment were based on the same conduct of hitting the victim with a hammer, resulting in serious bodily injury to the victim's hand and one of the victim's fingers being rendered useless when the victim placed the victim's hands up in an attempt to protect the victim's head; the aggravated assault was a lesser included offense of the aggravated battery because the assault required proof of a less serious injury than the aggravated battery. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).

In an aggravated assault and aggravated battery case arising out of an incident in which the defendant twice, in quick succession, slashed the throat of the victim, the defendant's girlfriend, the trial court erred by failing to merge the defendant's convictions, and the court of appeals erroneously affirmed that decision because the record sufficiently established that the defendant's actions were part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent; and the offenses, which were based on the single criminal act of the defendant cutting the victim's throat with a knife, only differed with respect to the seriousness of the injury or risk of injury suffered by the victim. Regent v. State, 299 Ga. 172, 787 S.E.2d 217 (2016).

Because the aggravated assault charge was based on the single criminal act of the defendant throwing acid on the victim, and differed from the aggravated battery counts only with respect to the specificity of the injury or risk of injury the victim actually suffered, the aggravated assault was included in the aggravated battery and should have merged. Fordham v. State, 352 Ga. App. 520, 835 S.E.2d 360 (2019).

Aggravated assault did not merge into aggravated battery and kidnapping.

- Crimes did not merge legally or factually because aggravated assault required proof that the defendant assaulted the victim using a deadly weapon, aggravated battery required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless, and kidnapping required asportation of the victim. The offenses were distinct with each requiring proof of a fact which the others did not. Reynolds v. State, 311 Ga. App. 119, 714 S.E.2d 621 (2011).

Aggravated assault did not merge into aggravated battery.

- Under the required evidence test, the defendant's convictions for aggravated assault and aggravated battery did not merge because the aggravated battery count required the state to prove that the defendant rendered a member of the victim's body useless, which the state did not have to prove for the conviction of aggravated assault with a deadly weapon; and aggravated assault with an offensive weapon required the state to prove that the defendant used a hammer, an object likely to result in serious bodily injury, which the state did not have to prove for the aggravated battery conviction. Howard v. State, 334 Ga. App. 229, 779 S.E.2d 5 (2015).

Trial court did not err in failing to merge Count Three, charging the defendant with aggravated assault with intent to murder, into the aggravated battery convictions because the count of aggravated assault with intent to murder required proof of a fact - the intent to kill - that the aggravated battery counts did not, and the aggravated battery counts required proof of a fact - the infant's skull was rendered useless and the infant's face was disfigured - that the aggravated assault with intent to murder count did not; thus, the trial court did not err in sentencing the defendant separately for aggravated assault with intent to murder, as well as two counts of aggravated battery. Busby v. State, 332 Ga. App. 646, 774 S.E.2d 717 (2015).

When the trial court merged the defendant's aggravated assault conviction into the defendant's armed robbery conviction, and then sentenced the defendant for armed robbery and aggravated battery, even if the trial court should have merged the defendant's aggravated battery and aggravated assault convictions, the end result would have been the same as the defendant would have been sentenced for aggravated battery rather than aggravated assault, given that the aggravated assault constituted the included offense; thus, any error by the trial court in failing to merge the defendant's aggravated battery and aggravated assault convictions was harmless and provided no basis for vacating the defendant's sentence. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).

Simple assault was not lesser included offense of aggravated assault.

- Trial court did not err by refusing to charge simple assault as a lesser included offense of aggravated assault in Count 4, alleging aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, was likely to and actually did result in serious bodily injury, as the defendant was either guilty of aggravated assault or not guilty at all because it was undisputed that the defendant hit the victim and pinned the victim against a mobile home while driving the van toward the victim from only about 20 feet away and that the defendant's action resulted in serious bodily injury to the victim. Patterson v. State, 332 Ga. App. 221, 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491, 789 S.E.2d 175 (2016).

Merger of aggravated assault and simple battery.

- Trial court should have merged the defendant's convictions for aggravated assault and simple battery, a lesser included offense, because the two offenses only differed with respect to the risk of, or seriousness of, injury to the victim. Hicks v. State, 337 Ga. App. 567, 788 S.E.2d 502 (2016).

Aggravated assault and kidnapping.

- Crimes did not merge legally or factually because aggravated assault required proof that the defendant assaulted the victim using a deadly weapon, aggravated battery required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless, and kidnapping required asportation of the victim. The offenses were distinct with each requiring proof of a fact which the others did not. Reynolds v. State, 311 Ga. App. 119, 714 S.E.2d 621 (2011).

Simple battery as lesser included offense of aggravated assault.

- Where jury was authorized to decide defendant's fist and hands were not used as deadly weapons as required for aggravated assault, there was no error in charging on simple battery, which was here a lesser included offense of aggravated assault. Guevara v. State, 151 Ga. App. 444, 260 S.E.2d 491 (1979).

Evidence that defendant did not use a pistol in a deadly fashion in striking the victim supported a conviction of simple battery as a lesser included offense of aggravated assault Fulton v. State, 232 Ga. App. 898, 503 S.E.2d 54 (1998).

Defendant failed to show error in refusing to merge offenses because defendant failed to show that aggravated assault was established by the same facts used to prove simple battery; evidence that defendant: (1) entered a store wearing a mask; (2) opened the cash drawer; (3) tried to wrangle a key to the drawer from the employee's hand; (4) demanded money; (5) banged on the register; and (6) appeared to have had a gun supported the aggravated assault conviction, but none of this evidence was needed to prove simple battery, which was established by evidence of defendant's bruising blows to the employee's arm. Lawson v. State, 275 Ga. App. 334, 620 S.E.2d 600 (2005).

Aggravated assault on a police officer merged with obstruction of a police officer.

- Trial court erred in failing to merge the defendant's convictions for four counts of obstruction of a police officer into the convictions for four counts of aggravated assault on a police officer because each count of the crime of obstruction was established by proof of the same or less than all the facts required to establish each count of the crime of aggravated assault; the state conceded that the trial court erred in failing to merge the convictions for obstruction into the convictions for aggravated assault on a police officer. Dobbs v. State, 302 Ga. App. 628, 691 S.E.2d 387 (2010).

Terroristic threats and aggravated assault with deadly weapon.

- The offense of terroristic threats was included in the offense of aggravated assault with a deadly weapon as a matter of fact since from the evidence the jury would have been authorized to find either that defendant used a gun to place the victim in reasonable apprehension of immediately receiving a violent injury or that defendant threatened to commit a crime of violence with the purpose of terrorizing the victim. Messick v. State, 209 Ga. App. 459, 433 S.E.2d 595 (1993).

Contrary to the defendant's claim, the convictions for terroristic threats and aggravated assault should not have merged as aggravated assault required proof of an assault with a knife, while terroristic threats required proof that the defendant threatened to murder the victims; each crime requiring the state to prove at least one fact different from the other. Petro v. State, 327 Ga. App. 254, 758 S.E.2d 152 (2014).

Possession of destructive device offense did not merge with aggravated assault.

- Defendant's aggravated assault and possession of a destructive device convictions did not merge because the possession offense required that the weapon function in a certain way and have certain dimensions, and the assault offense required that the victim was conscious of the risk of immediately receiving a violent injury by use of an offensive weapon. Because each offense required proof of a fact not required for the other, there was no merger under the required evidence test. Mason v. State, 312 Ga. App. 723, 719 S.E.2d 581 (2011).

Battery conviction did not merge into conviction for aggravated assault with offensive weapon.

- Under the required evidence test, defendant's conviction for battery did not merge into the defendant's conviction for aggravated assault with an offensive weapon. Gipson v. State, 332 Ga. App. 309, 772 S.E.2d 402 (2015).

Assault with intent to murder and aggravated assault charges.

- Under the required evidence test, the defendant's two aggravated assault convictions did not merge because the assault with intent to murder count required the state to prove that the defendant intended to kill the victim, which the state was not required to prove for the charge of aggravated assault with a deadly weapon; and the aggravated assault with a deadly weapon count required the state to prove that the defendant used a deadly weapon, a knife, box-cutter, or other sharp-edged instrument, which the state did not have to prove for the conviction of aggravated assault with intent to murder. Howard v. State, 334 Ga. App. 229, 779 S.E.2d 5 (2015).

Jury instruction on terroristic threats as lesser included offense of aggravated assault.

- Defendant was not entitled to a jury instruction on terroristic threats as a lesser included offense of aggravated assault because terroristic threats was not a lesser included offense of aggravated assault. Soto v. State, 303 Ga. 517, 813 S.E.2d 343 (2018).

Controlled Substances

Illegal possession not included in illegal sale as matter of law.

- As a matter of law, crime of illegal possession of heroin is not included in crime of illegal sale of heroin for purposes of double jeopardy and multiple prosecution. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).

Illegal possession of controlled substance may be included in illegal sale.

- If evidence required to convict of illegal sale of controlled substance is the only evidence showing possession, illegal possession is included in crime of illegal sale as a matter of fact. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975).

Multiple accusations and indictments not barred.

- Because no evidence showed that the information concerning the defendant was known to the proper prosecuting officer in Gwinnett County, and because no basis otherwise existed for a charge of conspiracy to traffic based on what officers recovered in the search of the defendant's home, the appeals court refused to state that the defendant could have been convicted of conspiracy to traffic methamphetamine in Gwinnett County, or that Gwinnett County should have charged the defendant with this crime; hence, under these circumstances, the Dawson County indictment was not barred under O.C.G.A. §§ 16-1-6(b)(1) and16-1-7(b). Bradford v. State, 283 Ga. App. 75, 640 S.E.2d 630 (2006).

Controlled substances.

- Defendant may be prosecuted, convicted, and separately sentenced for the simultaneous possession of each of the controlled substances listed in Schedule II of the Controlled Substances Act. Tabb v. State, 250 Ga. 317, 297 S.E.2d 227 (1982).

Offense of unlawfully selling a noncontrolled substance while representing the substance to be a controlled substance (O.C.G.A. § 16-13-30.1) is not included in the offense of conspiracy to sell or distribute cocaine (O.C.G.A. § 16-13-30). Smith v. State, 202 Ga. App. 664, 415 S.E.2d 481 (1992).

Possession of cocaine included in trafficking offense.

- Offenses of possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses, as a matter of fact, of the trafficking offense since proof of the two possession offenses was established by "the same or less than all the facts" required to establish the distribution offense; thus, it was error to convict the defendant of all three offenses. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).

Possession of marijuana not included in crime of manufacturing.

- Possession of marijuana is not a necessary element of the crime of knowingly manufacturing marijuana by cultivating or planting, and so misdemeanor possession is not a lesser offense included in the crime of manufacturing as a matter of law. Galbreath v. State, 213 Ga. App. 80, 443 S.E.2d 664 (1994); Hunt v. State, 222 Ga. App. 66, 473 S.E.2d 157 (1996).

Possession of marijuana and possession with intent to distribute.

- Offense of possession of marijuana was included in the offense of possession of marijuana with intent to distribute, where the possession charge could be established by proof of a less culpable mental state (general criminal intent) than was required to establish the commission of possession with intent to distribute (specific criminal intent to distribute). Talley v. State, 200 Ga. App. 442, 408 S.E.2d 463 (1991).

Charge on lesser included offense of possession with intent to distribute.

- Because defendant was indicted for possession of more than 28 grams of methamphetamine, a violation of O.C.G.A. § 16-13-31, defendant had sufficient notice that the lesser included offense of possession with intent to distribute, a violation of O.C.G.A. § 16-13-30(b), might be submitted to the jury if the evidence warranted it; consequently, by charging the lesser offense in accordance with O.C.G.A. § 16-1-6, the trial court did not permit the jury to convict defendant in a manner not alleged in the indictment in violation of defendant's due process rights. Rupnik v. State, 273 Ga. App. 34, 614 S.E.2d 153 (2005).

Possession of drug-related objects conviction merged as a matter of fact into defendant's felony conviction for possession of cocaine. Reddick v. State, 249 Ga. App. 678, 549 S.E.2d 151, cert. denied, No. S01C1352, 2001 Ga. LEXIS 802 (Oct. 1, 2001).

Solicitation is not a lesser included offense of trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e), as the facts necessary to prove each offense are different. Dimas v. State, 276 Ga. App. 245, 622 S.E.2d 914 (2005).

No separate quantity used to prove trafficking charge distinct from possession charge.

- Because both the trafficking and manufacturing charges against defendants arose from methamphetamine found in a cooler, no other quantity of methamphetamine was presented at trial, and there was no separate quantity of methamphetamine used to prove the trafficking charge, defendants were entitled to resentencing because the convictions merged and the trial court erred in sentencing for both offenses. Goldsby v. State, 273 Ga. App. 523, 615 S.E.2d 592 (2005).

Imposition of separate trafficking sentences proper.

- Trial court did not err under O.C.G.A. §§ 16-1-6(2) and16-1-7(a)(1) by sentencing the defendant separately for trafficking in methamphetamine, in violation of O.C.G.A. § 16-13-31, and trafficking in ecstasy, in violation of O.C.G.A. § 16-13-31.1, when the substance which was found in the defendant's vehicle tested positive for both methamphetamine and ecstasy as there was no evidence that chemical compounds or elements were shared between the drugs. Ahmad v. State, 312 Ga. App. 703, 719 S.E.2d 563 (2011).

Kidnapping

Offenses of kidnapping and aggravated assault with intent to rape were not included in each other in law or in fact. Strozier v. State, 171 Ga. App. 703, 320 S.E.2d 764 (1984); Isaacs v. State, 213 Ga. App. 379, 444 S.E.2d 409 (1994).

Aggravated assault as included offense of kidnapping with bodily injury.

- Because elements of crime of aggravated assault must have been proved in order to sustain conviction for crime of kidnapping with bodily injury, aggravated assault is an included offense of crime of kidnapping with bodily injury. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981).

Aggravated assault and kidnapping.

- Aggravated assault, with intent to rob as the factor in aggravation, is not a lesser included offense of kidnapping with bodily injury. Brown v. State, 232 Ga. App. 787, 504 S.E.2d 452 (1998).

When one offense is established by the same but less than all of the facts required to establish another offense, the first merges into the second as a matter of fact; aggravated assault is a lesser included offense of, and merges with, the crime of kidnapping with bodily injury, and a trial court erred by failing to merge defendant's aggravated assault conviction into defendant's kidnapping with bodily injury conviction. Bailey v. State, 269 Ga. App. 262, 603 S.E.2d 786 (2004).

Trial court did not err in denying defendant's motion to correct an illegal sentence, pursuant to O.C.G.A. §§ 16-1-6 and16-1-7, as defendant's convictions for aggravated assault and kidnapping, in violation of O.C.G.A. §§ 16-5-21 and16-5-40(a), respectively, did not merge as a matter of law, as only aggravated assault and kidnapping with bodily injury merged as a matter of law; further, the crimes did not merge as a matter of fact, as they were based on separate and distinct facts, and due to the timing of defendant's actions during the incident, the separate convictions were proper. Walker v. State, 275 Ga. App. 862, 622 S.E.2d 64 (2005).

Kidnapping, aggravated assault, and rape were separate offenses, completed individually, and did not merge as a matter of fact; thus, the trial court did not err in refusing to merge the kidnapping counts into the aggravated assault and rape counts for purposes of sentencing. Dasher v. State, 281 Ga. App. 326, 636 S.E.2d 83 (2006).

Because there was independent evidence to support each of the offenses as indicted, a defendant's aggravated assault conviction did not merge as a matter of fact with either the aggravated battery or kidnapping with bodily injury convictions. Pitts v. State, 287 Ga. App. 540, 652 S.E.2d 181 (2007).

Trial court did not err in declining to merge kidnapping counts with aggravated assault counts because the aggravated assault involved different conduct from the kidnapping and was completed prior thereto and, thus, the same conduct did not establish the commission of both offenses; even if the kidnapping counts involved the same conduct as the aggravated assault, neither was included in the other after application of the "required evidence" test. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).

Kidnapping and aggravated sodomy.

- Kidnapping and aggravated sodomy are not included in offenses as a matter of law and, even though they may be included as a matter of fact, where the same evidence was not used to prove both crimes, the trial court did not err by refusing to find a merger. Hardy v. State, 210 Ga. App. 811, 437 S.E.2d 790 (1993).

Armed robbery and kidnapping.

- Offenses of armed robbery and kidnapping with bodily injury did not merge as a matter of fact or law, where the robbery and kidnapping were completed before the victim was shot in the leg, and the evidence of neither offense was necessary to prove the other. Solomon v. State, 195 Ga. App. 882, 395 S.E.2d 335 (1990).

Kidnapping with bodily injury and aggravated battery.

- State established all the necessary elements of kidnapping with bodily injury upon showing that defendant grabbed victim's arm, forced the victim to the rear of the store, and then struck the victim in the face. The offense of aggravated battery was shown by the evidence of defendant's subsequent banging of victim's head against a concrete floor and choking of the victim. Robinson v. State, 210 Ga. App. 175, 435 S.E.2d 466 (1993).

Kidnapping with bodily injury and battery.

- In a prosecution for kidnapping with bodily injury and battery, use of the same evidence to prove that defendant perpetrated battery as proof of the offense of kidnapping with bodily injury required reversal of defendant's conviction and sentence for battery. Holmes v. State, 229 Ga. App. 671, 494 S.E.2d 560 (1998).

Prosecution for kidnapping and escape.

- See Bailey v. State, 146 Ga. App. 774, 247 S.E.2d 588 (1978).

Kidnapping and false imprisonment.

- After the defendant had been convicted of kidnapping with bodily injury, subsequent charges of false imprisonment, arising out of the same set of facts, were barred by former jeopardy under the "required evidence test" because false imprisonment was a lesser included offense of kidnapping with bodily injury. Sallie v. State, 216 Ga. App. 502, 455 S.E.2d 315 (1995).

Trial court did not err in allowing the jury to consider the lesser included offense of false imprisonment after granting a directed verdict on the kidnapping charges against the defendant because false imprisonment was a lesser included offense of kidnapping, and the indictment against the defendant contained all the essential elements related to false imprisonment. Martinez v. State, 318 Ga. App. 254, 735 S.E.2d 785 (2012).

Prosecution for felony murder upon conviction for kidnapping.

- Once the state tried and convicted petitioner for kidnapping, it would be barred from prosecuting the petitioner for felony murder only if underlying felony upon which that prosecution was based was that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Malice murder and kidnapping are not same offense for double jeopardy purposes even though they involve same transaction and considerably overlap each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Evidence of murder as a basis for separate conviction of kidnapping.

- Evidence of murder of a given victim can be used as basis for separate conviction of murder count and also as basis for conviction of kidnapping with bodily injury to same victim. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981).

Murder and kidnapping with bodily injury are not included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Murder and kidnapping with bodily injury not included as a matter of fact under former Code 1933, § 26-505(1) since these crimes have distinct elements. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

When the defendant was convicted for murder and kidnapping with bodily injury of the same victim, the bodily injury alleged was the killing of the victim. As a matter of fact, as well as a matter of law, the murder and kidnapping with bodily injury were not included offenses so as to bar the defendant from being prosecuted and subsequently convicted of both crimes. Neither crime could have been established by proof of the same or less than all of facts required to establish commission of crime charged. The murder required finding of malice aforethought, but the kidnapping required no such finding. The kidnapping required a finding of unlawful abduction, while such a finding is not necessary for conviction for murder. Brown v. State, 247 Ga. 298, 275 S.E.2d 52, cert. denied, 454 U.S. 882, 102 S. Ct. 366, 70 L. Ed. 2d 192 (1981).

Kidnapping, rape, and sodomy.

- When the evidence used to establish the offense of kidnapping with bodily injury was the asportation of the victim and the bite marks, bumps, and bruises suffered by the victim when the victim was pushed inside the apartment and prevented from leaving and the offenses of rape and sodomy were proved by testimony concerning subsequent events, the facts used to prove the crimes of rape and sodomy were different from those used to show the essential elements of kidnapping with bodily injury; therefore, the offenses did not merge. Peterson v. State, 212 Ga. App. 31, 441 S.E.2d 267 (1994).

Rape and kidnapping with bodily injury.

- Double jeopardy attached where the state sought to prosecute defendant for rape and sodomy in one county based upon the same facts, upon the same actual evidence, which was used to convict defendant for kidnapping with bodily injury in another county. State v. Sallie, 206 Ga. App. 732, 427 S.E.2d 11 (1992).

Because the proof establishing the crime of rape did not use up the proof establishing the crime of kidnapping with bodily injury, the crimes did not merge; accordingly, the trial court did not err by refusing to merge two of defendant's kidnapping with bodily injury convictions with two of defendant's rape convictions. Collins v. State, 267 Ga. App. 784, 600 S.E.2d 802 (2004).

Kidnapping with bodily harm and rape.

- In a criminal trial, the offenses of kidnapping with bodily harm and rape were not merged where under the facts neither offense was included in the other as a matter of fact nor as a matter of law. Turner v. State, 194 Ga. App. 878, 392 S.E.2d 256 (1990).

Kidnapping and rape not included.

- Since neither the crime of kidnapping nor rape were included in the other as a matter of fact, the court did not err by sentencing defendant for both offenses. Dawson v. State, 203 Ga. App. 146, 416 S.E.2d 125, cert. denied, 203 Ga. App. 905, 416 S.E.2d 125 (1992).

Kidnapping is not included in crime of robbery as a matter of law. Chambley v. State, 163 Ga. App. 502, 295 S.E.2d 166 (1982).

Robbery by force and kidnapping with bodily injury.

- After the victim testified that defendants grabbed the victim outside of the restaurant, forced the victim into and through the restaurant and the victim did not willingly accompany the defendants, and that the robbery was effectuated once defendants were inside the restaurant, the offenses of robbery by force and kidnapping with bodily injury were not merged as a matter of fact. Powell v. State, 210 Ga. App. 409, 437 S.E.2d 598 (1993).

Murder

Aggravated assault with intent to commit murder and with a deadly weapon may be charged as lesser included offenses of murder. Hall v. State, 163 Ga. App. 515, 295 S.E.2d 194 (1982).

Aggravated assault and attempt to commit murder.

- Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343, 411 S.E.2d 276 (1991).

Aggravated assault and malice murder.

- Where evidence used to prove that defendant perpetrated the aggravated assault of decedent - that defendant fired a deadly weapon and wounded the victim - was used to establish that defendant had committed malice murder, convictions for both aggravated assault and murder violated double jeopardy. Montes v. State, 262 Ga. 473, 421 S.E.2d 710 (1992).

Codefendant's conviction for aggravated assault had to be vacated because that conviction merged as a matter of fact into the conviction for malice murder since the medical examiner who performed the autopsy of the victim testified that the cause of death was "gunshot wounds," did not identify any injury as the fatal shot, acknowledged the examiner could not testify as to the order in which the bullets entered the victim's body, and stated no single wound would have instantly stopped the victim; in the absence of evidence that one wound was fatal and was preceded by a "deliberate interval" in the series of shots fired and by the infliction of non-fatal wounds, there was no evidence to support the infliction of an aggravated assault separate and apart from the malice murder. Coleman v. State, 286 Ga. 291, 687 S.E.2d 427 (2009).

Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012).

Aggravated assault merged with malice murder.

- When the evidence did not support a conviction for aggravated assault that was independent of acts that caused the victim's death, conviction of the defendant for aggravated assault merged with the defendant's conviction for malice murder. Fetty v. State, 268 Ga. 365, 489 S.E.2d 813 (1997).

Although the evidence was sufficient to find defendant guilty of malice murder, because the aggravated assault was not independent of the act that caused the victim's death, the aggravated assault charge was included in the murder conviction. Evans v. State, 275 Ga. 672, 571 S.E.2d 780 (2002).

Defendant's conviction and sentence for aggravated assault was vacated as the malice murder and the aggravated assault charges merged as a matter of fact, because the same evidence to prove aggravated assault as indicted, stabbing the victim with a knife, was used to prove malice murder. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005).

Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790, 671 S.E.2d 815 (2009).

Armed robbery is not a lesser included offense of malice murder as a matter of law. Addison v. State, 239 Ga. 622, 238 S.E.2d 411 (1977); Chafin v. State, 246 Ga. 709, 273 S.E.2d 147 (1980). (But see Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975)).

When the evidence showed the defendant was one of three perpetrators contemplating both murder and armed robbery when the perpetrators embarked on the criminal venture, defendant was a knowing participant in both crimes, and a pistol subsequently found in defendant's possession was property taken from the victim which formed the basis for the armed robbery charge, the armed robbery was not a lesser included offense of malice murder. Lemay v. State, 264 Ga. 263, 443 S.E.2d 274 (1994).

Armed robbery as included offense of malice murder.

- When the defendant is charged with armed robbery of a murder victim, proof of the armed robbery is essential to support the defendant's conviction of malice murder and is an included offense. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).

Burglary and murder not lesser included offenses of each other.

- Charges of burglary based on defendant's intent to commit aggravated assault on the occupant of the entered dwelling and murder for death of the occupant during burglary were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553, 300 S.E.2d 301 (1983), overruled on other grounds by Venturino v. State, 830 S.E.2d 110, 2019 Ga. LEXIS 435 (Ga. 2019), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1356 (1983).

When the defendant is found guilty of felony murder, the underlying felony is a lesser included offense. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Additional felony murder charge predicated on burglary cannot be construed as a lesser-included offense of felony murder predicated on aggravated assault or of malice murder under O.C.G.A. § 16-1-6. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).

Felony firearm possession and felony murder.

- Conviction of possession of a firearm by a convicted felon merged with the conviction of felony murder, as the underlying felony was possession of a firearm by a convicted felon, such that defendant's conviction and sentence on the possession charge were vacated. Garrett v. State, 263 Ga. 131, 429 S.E.2d 515 (1993).

Conviction for possession of a firearm by a convicted felon required vacating, as that crime was specified as underlying the felony murder charge in the indictment and in the court's instructions to the jury. Dennis v. State, 263 Ga. 257, 430 S.E.2d 742 (1993).

Underlying felony is a lesser included offense of felony murder under O.C.G.A. § 16-1-6 and conviction of both offenses is proscribed under provisions of O.C.G.A. § 16-1-7. Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975); Jowers v. State, 259 Ga. 401, 382 S.E.2d 595 (1989).

As felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Robbery by force and malice murder were separate crimes which did not merge as a matter of law. Hill v. State, 274 Ga. 591, 555 S.E.2d 696 (2001).

Armed robbery and felony murder.

- When proof of the armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169, 304 S.E.2d 377 (1983).

Felony murder not lesser included offense.

- Since the defendant used a pistol in two different ways to inflict separate and distinct wounds on the victim, and the acts giving rise to the two crimes were separated by intervening events, the crime of aggravated assault was not established by the same but by less than all the facts required to establish the crime of felony murder, and the trial court did not err in refusing to merge the aggravated assault conviction. Garrett v. State, 263 Ga. 131, 429 S.E.2d 515 (1993).

In a prosecution on separate counts of malice murder, armed robbery, and kidnapping, the trial court did not err in failing to charge the jury on felony murder as a lesser included offense. Henry v. State, 265 Ga. 732, 462 S.E.2d 737 (1995).

Murder is not a lesser included offense under crime of possession of firearm during commission of felony. Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, cert. denied, 459 U.S. 1092, 103 S. Ct. 580, 74 L. Ed. 2d 940 (1982).

Voluntary manslaughter is a lesser included offense of felony murder. Young v. State, 141 Ga. App. 261, 233 S.E.2d 221 (1977).

Voluntary manslaughter is a lesser included offense of felony murder, because an act done in passion involves a less culpable mental state than that of real or imputed malice which is the foundation of the felony murder rule. Therefore, where facts warrant it, a charge on voluntary manslaughter may indeed be given in a felony murder trial. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977).

Merger of aggravated assault conviction into voluntary manslaughter conviction.

- Trial court erred in failing to merge both defendants' convictions for voluntary manslaughter and aggravated assault with a deadly weapon because the indictments charged the defendants with felony murder by alleging that the defendants committed aggravated assault, but the court then charged the defendants with aggravated assault based on the exact same conduct; and, although the jury convicted the defendants of voluntary manslaughter as a lesser-included offense of felony murder, the court, nevertheless, followed the defendants' convictions for aggravated assault merged as a matter of fact into the defendants convictions for voluntary manslaughter. Hamlette v. State (two cases), 353 Ga. App. 640, 839 S.E.2d 161 (2020).

Indictment sufficient to notify defendant of felony murder.

- Defendant indicted in two counts, one for malice murder and the other for the armed robbery of the deceased at the same time, is on notice that defendant may be found guilty of felony murder, armed robbery being the felony. But a defendant indicted only for malice murder cannot be convicted of felony murder unless the defendant has been put on notice of the felony by the facts alleged to show how the murder was committed. McCrary v. State, 252 Ga. 521, 314 S.E.2d 662 (1984).

An accused may be convicted of an offense included in the underlying felony charged in a felony-murder indictment; if the evidence would authorize a finding that the accused committed an offense included in the underlying felony charged in a felony murder indictment, and if that included offense was a misdemeanor, then a guilty verdict as to felony-grade involuntary manslaughter would be authorized. Motes v. State, 192 Ga. App. 302, 384 S.E.2d 463 (1989).

Indictment charging involuntary manslaughter by simple battery sufficient.

- Indictment charging the defendant with involuntary manslaughter by the commission of the unlawful act of simple battery in violation of O.C.G.A. §§ 16-5-3(a) and16-5-23(a) was not void because the factual allegations in the indictment sufficiently described the offense of involuntary manslaughter in the commission of the unlawful act of simple battery. Morris v. State, 310 Ga. App. 126, 712 S.E.2d 130 (2011).

Aggravated battery merged with malice murder.

- Defendant's convictions for both aggravated battery and malice murder were prohibited by O.C.G.A. § 16-1-6(2) because the victim's death was caused by the same actions that caused the victim's murder; because the only difference between the offenses was that the former required a lesser injury, the defendant could not be convicted of both. Ledford v. State, 289 Ga. 70, 709 S.E.2d 239, cert. denied, 565 U.S. 1017, 132 S. Ct. 556, 181 L. Ed. 2d 401 (2011), overruled on other grounds by Willis v. State, 394 Ga. 686, 820 S.E.2d 640 (2018).

Evidence of a three-year-old child's injuries and death was sufficient to support the defendant's conviction for malice murder, felony murder, aggravated assault, and aggravated battery; however, the defendant's conviction for aggravated battery based on the fracture of the child's ribs should have been merged into the defendant's conviction for murder under O.C.G.A. § 16-1-6(b). Soilberry v. State, 289 Ga. 770, 716 S.E.2d 162 (2011).

Family violence aggravated battery merged with attempted murder.

- Trial court erred in failing to merge the offense of family violence aggravated battery with attempted murder as both convictions were established by the same conduct. Hernandez v. State, 317 Ga. App. 845, 733 S.E.2d 30 (2012).

Aggravated battery did not merge into attempted murder.

- Trial court erred in merging the conviction that required the greater injury, aggravated battery, into the conviction that required the lesser injury, attempted murder. Zamudio v. State, 332 Ga. App. 37, 771 S.E.2d 733 (2015).

Merger of counts follow murder and multiple victims.

- Conspiracy to commit the two alleged injuries to one victim and the victim's property did not require proof of causing a second victim's death, and proof of causing the second victim's death as a result of aggravated assault did not require proof of acts for which the defendant was found guilty in two counts; thus, that portion of the sentencing order whereby the trial court merged the convictions on those counts had to be vacated. Grissom v. State, 296 Ga. 406, 768 S.E.2d 494 (2015).

Rape

Crime of adultery is not a lesser offense included in crime of rape, because in order to prove adultery, additional fact of marriage must be shown. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

When evidence of aggravated assault was unnecessary to prove rape both crimes were properly submitted. Hughes v. State, 239 Ga. 393, 236 S.E.2d 829 (1977).

Where there was evidence presented that more than one assault took place prior to and during a rape, the jury was authorized to conclude that at least one of the assaults was gratuitous and unconnected with the rape offense; the defendant could be convicted of both rape and aggravated assault. Sylvester v. State, 168 Ga. App. 718, 310 S.E.2d 284 (1983).

Conviction of aggravated assault.

- When, after completing the act of forcible intercourse (rape), defendant drew a gun again, pulled back the hammer, and threatened to shoot both victims if they did not obey defendant's further commands, this second drawing of the deadly weapon was subsequent to, and separate from, the completed offense of rape against the first victim; thus, the evidence regarding the use of force during the incident was not "used up" in the offense of rape, and defendant could properly be convicted of aggravated assault. Ellis v. State, 181 Ga. App. 826, 354 S.E.2d 15 (1987).

When aggravated assaults constituted gratuitous physical violence which was distinguished from the forced sex acts, and occurred in different locations in the house and to different parts of the victim's body than the sex crimes, there was no factual merger of the offenses of aggravated assault and of rape and aggravated sodomy. Taylor v. State, 202 Ga. App. 671, 415 S.E.2d 483 (1992).

Incest may be an included offense of statutory rape under appropriate facts. McCranie v. State, 157 Ga. App. 110, 276 S.E.2d 263 (1981), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Statutory rape and incest not included offenses.

- Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 in failing to argue at trial and on appeal that the inmate's statutory rape and incest convictions should have merged into the inmate's rape conviction as a matter of fact since all of the crimes arose out of the same incident, as the crimes of statutory rape and incest were not established by proof of the same or less than all the facts required to establish the crime of rape; the inmate's convictions of statutory rape under O.C.G.A. § 16-6-3 and incest under O.C.G.A. § 16-6-22 were not included pursuant to O.C.G.A. § 16-1-6(1) in the rape conviction under O.C.G.A. § 16-6-1, as statutory rape, which required evidence as to the victim's age and that the victim was not the inmate's spouse, and incest, which required proof of the victim's relation to the inmate, had elements not required for rape. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Statutory rape not lesser included offense of forcible rape.

- Trial court did not err in failing to instruct the jury that statutory rape was a lesser included offense of forcible rape because a conviction of statutory rape required proof that the victim was under the age of consent, while a conviction of rape required proof of force, regardless of the victim's age. Stuart v. State, 318 Ga. App. 839, 734 S.E.2d 814 (2012).

Rape and assault with intent to rape.

- Offense of rape includes the lesser offense of assault with intent to rape. Padgett v. State, 205 Ga. App. 576, 423 S.E.2d 411 (1992).

Simple assault did not merge with assault with intent to rape.

- There was no merger of offenses as a result of defendant's conviction of simple assault and aggravated assault with the intent to rape, where there was sufficient evidence of two separate assaults, the simple assault having been a sequential reaction to the victim's resistance to the charged sexual assault. Watson v. State, 178 Ga. App. 778, 344 S.E.2d 667 (1986).

Merger of attempted rape and aggravated assault.

- Defendant's conviction for aggravated assault with intent to rape under O.C.G.A. § 16-5-21(a)(1) merged into the defendant's conviction for attempted rape under O.C.G.A. §§ 16-4-1 (criminal attempt) and16-6-1 (rape) because the same evidence supported both convictions and, therefore, the aggravated assault conviction was vacated. Smith v. State, 313 Ga. App. 170, 721 S.E.2d 165 (2011).

Simple battery as included offense of rape.

- Simple battery merged into the defendant's rape conviction as a matter of fact, since the same impermissible touching - the hitting and slapping which constituted simple battery - also supplied the element of force necessary for conviction of rape, thereby requiring reversal of the simple battery conviction. Johnson v. State, 195 Ga. App. 723, 394 S.E.2d 586 (1990).

No merger of rape and incest.

- Defendant's rape and incest convictions did not merge because each crime required proof of an additional fact that the other did not because, to establish the crime of rape, the state had to prove that the defendant lacked consent, which was not an element of incest; and, to establish the crime of incest, the state had to prove that the victim was of a certain relation to the defendant, which was not an element of rape; thus, the trial court did not err in sentencing the defendant for both rape and incest. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).

Acquittal of offense charged precludes adjudication as to lesser included offense.

- When the defendant cannot be guilty of charge of rape without also being guilty of the burglary of which the defendant has been tried and acquitted, as an essential element of burglary is an intent to commit a felony, specified in the indictment as rape, the defendant cannot be put in jeopardy for purpose of again adjudicating an issue which has already been determined in the defendant's favor. State v. Lamb, 147 Ga. App. 435, 249 S.E.2d 150 (1978).

Child Molestation

Aggravated child molestation and rape.

- Entering separate convictions and sentences for aggravated child molestation and rape was error where the evidence established that the injuries sustained by the victim as a result of the rape were the same injuries as those alleged as the basis for the charge of aggravated child molestation. Caldwell v. State, 263 Ga. 560, 436 S.E.2d 488 (1993).

Where the forcible rape was both the act and the cause-in-fact of the injuries that formed the basis for the aggravated child molestation, the proof of one necessarily proved the other and, while it was proper to prosecute defendant for both rape and aggravated child molestation, defendant should have been convicted and sentenced only for the rape. Donaldson v. State, 244 Ga. App. 89, 534 S.E.2d 839 (2000).

Because defendant's aggravated child molestation and rape convictions were based on separate and distinct sexual acts and different conduct, those convictions could not have been included offenses under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, defendant's pro se motion to vacate the sentence as void was properly denied. Reed v. State, 297 Ga. App. 850, 678 S.E.2d 560 (2009).

Aggravated assault to commit rape did not merge with cruelty to children and sexual battery.

- Juvenile court was authorized to adjudicate juvenile delinquent for aggravated battery with intent to rape upon evidence showing that the juvenile removed the victim's t-shirt and bra against her will; cruelty to children offense was supported by evidence showing that the victim after the fact was scared, crying, shaking, and subject to hives causing her to withdraw from school; and the sexual battery offense was supported by evidence that the juvenile touched the victim's breasts and vaginal area after striking her in the face, forcing her onto her back on the sofa. In the Interest of J.C., 255 Ga. App. 471, 566 S.E.2d 39 (2002).

Attempted aggravated child molestation and attempted aggravated sodomy.

- In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and16-1-7. Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408, 825 S.E.2d 909 (2019).

Aggravated sodomy did not merge into the offense of child molestation, where one of the offenses was established by proof of the same or less than all the facts required to prove the other. LeGallienne v. State, 180 Ga. App. 108, 348 S.E.2d 471 (1986).

Evidence demonstrated that defendant's convictions of aggravated sodomy and aggravated child molestation were supported by separate facts because the victim testified to several separate sexual acts; thus, the evidence authorized the jury to find that more than one instance of sodomy and molestation occurred, permitting a conviction for each offense based on separate occasions, the crimes did not merge, and the trial court was correct in sentencing defendant on each count. Henry v. State, 274 Ga. App. 139, 616 S.E.2d 883 (2005).

Child molestation and aggravated sexual battery did not merge where the child molestation conviction was supported by evidence that the defendant fondled the victim's breasts and the exterior of her vagina on numerous occasions, and the aggravated sexual battery conviction was based on evidence that defendant penetrated the victim's vagina with defendant's finger. Seidenfaden v. State, 249 Ga. App. 314, 547 S.E.2d 578 (2001).

Trial court did not err in refusing to merge defendant's offenses of child molestation and aggravated sexual battery, as defendant's conviction of aggravated sexual battery was supported by evidence that defendant penetrated the victim's vagina with defendant's fingers, and defendant's conviction of child molestation was supported by evidence that he also touched her down in between the victim's legs; thus, the convictions were supported by separate facts, and there was no merger. Childers v. State, 257 Ga. App. 377, 571 S.E.2d 420 (2002).

Trial court did not err in sentencing defendant on defendant's convictions for aggravated sexual battery and child molestation by not merging the aggravated sexual battery offense into the child molestation offense involving the same victim; the state proved that the offenses involved separate acts, and, thus, merger of those offenses would not have been appropriate. Aaron v. State, 275 Ga. App. 269, 620 S.E.2d 499 (2005).

Because a defendant's convictions for aggravated sexual battery and child molestation were both based on the defendant's touching of the victim's genital area in connection with the penetration of her vagina with a finger, the offenses merged under O.C.G.A. § 16-1-6(1). Davenport v. State, 277 Ga. App. 758, 627 S.E.2d 133 (2006).

Trial court properly refused to merge, for sentencing purposes, defendant's convictions for aggravated sexual battery and child molestation since the charged offense of aggravated sexual battery required proof of penetration, whereas the charged offense of child molestation did not. As a result, the separate acts were neither factually nor legally contained in the other respective count and, therefore, the offenses did not merge. Daniel v. State, 292 Ga. App. 560, 665 S.E.2d 696, cert. denied, No. S08C1931, 2008 Ga. LEXIS 891 (Ga. 2008).

Defendant's child molestation conviction under O.C.G.A. § 16-6-4(a) did not merge under O.C.G.A. §§ 16-1-6(1) and16-1-7(a) into the defendant's aggravated sexual battery conviction under O.C.G.A. § 16-6-22.2 as the child molestation charge required proof that the defendant committed an immoral and indecent act with the intent to arouse and satisfy the defendant's sexual desires, whereas the aggravated sexual battery charge did not, and the aggravated sexual battery charge required proof of penetration, whereas the child molestation charge did not. Gaston v. State, 317 Ga. App. 645, 731 S.E.2d 79 (2012).

Child molestation and aggravated child molestation.

- Trial court did not err in entering separate sentences for the offenses of aggravated child molestation and child molestation, where the indictment charged defendant with separate and different sexual acts, and the act which constituted the offense of aggravated child molestation was proved without any reference to the acts which constituted the offenses of child molestation. Sweet v. State, 196 Ga. App. 451, 396 S.E.2d 82 (1990).

Two crimes of aggravated child molestation and child molestation did not merge when different evidence could be used to prove each offense separately. Brewer v. State, 251 Ga. App. 77, 553 S.E.2d 363 (2001)(Unpublished).

Child molestation and cruelty to children.

- Trial court did not err in failing to merge the defendant's convictions for child molestation, O.C.G.A. § 16-6-4(a), and cruelty to children, O.C.G.A. § 16-5-70, because each crime required proof of at least one additional element that the other did not, and thus, even if the same conduct established the commission of both child molestation and cruelty to children, the two crimes did not merge; cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b), and in contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant's or the child's sexual desires, O.C.G.A. § 16-6-4(a). Chandler v. State, 309 Ga. App. 611, 710 S.E.2d 826 (2011).

Child molestation and rape.

- Conviction of child molestation did not merge into the offense of rape, where the evidence showed that the jury was authorized to find that defendant fondled the victim and, in an entirely separate incident later that evening, raped the victim. Jimmerson v. State, 190 Ga. App. 759, 380 S.E.2d 65, cert. denied, 190 Ga. App. 898, 380 S.E.2d 65 (1989).

Child molestation and aggravated sodomy.

- O.C.G.A. § 16-6-4(a) (child molestation) was not a lesser included offense of O.C.G.A. § 16-6-2 (aggravated sodomy), either as a matter of law under O.C.G.A. § 16-1-6(2) or O.C.G.A. § 16-1-7(a), or as a matter of fact. Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987).

Child molestation in connection with the fondling of the victim's vagina did not merge with aggravated sodomy charges based on two acts of oral sex, where the acts of sodomy were not used to establish the child molestation charge. Pressley v. State, 197 Ga. App. 270, 398 S.E.2d 268 (1990).

Child molestation and aggravated sodomy are legally distinct, and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769, cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019), cert. denied, 200 Ga. App. 896, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

When the victim's testimony and other physical evidence clearly showed two incidents of sodomy, one occurring prior to the rape and one afterward, the appellant's contention that the counts of aggravated child molestation and aggravated sodomy were based on a single sexual act and should be merged was invalid. Garland v. State, 213 Ga. App. 583, 445 S.E.2d 567 (1994).

Child molestation and other sexual assaults.

- Because the evidence of defendant's sexual assault of the child victim over a period of a year was sufficient to find defendant guilty of rape, two counts of aggravated child molestation, sodomy, and the charge of aggravated sexual battery, the two counts of aggravated child molestation did not merge as a matter of fact under O.C.G.A. § 16-1-6(1). Keown v. State, 275 Ga. App. 166, 620 S.E.2d 428 (2005).

In a criminal trial on multiple counts of sexual offenses committed against a child victim, there was no error in the trial court's decision not to merge all of the convictions into a cruelty to children count, as the record was replete with multiple acts of sexual abuse and the evidence accordingly did not require merger because the state did not use evidence that the defendant committed one crime in proving another. Daniels v. State, 278 Ga. App. 332, 629 S.E.2d 36 (2006).

Child molestation as lesser included offense of statutory rape.

- Trial court did not err in instructing the jury that it could return a verdict on child molestation, where defendant had been indicted for statutory rape and the evidence showed that child molestation was a lesser included offense of statutory rape as a matter of fact. Burgess v. State, 189 Ga. App. 790, 377 S.E.2d 543 (1989), aff'd, 194 Ga. App. 179, 390 S.E.2d 92 (1990).

Trial court erred when it convicted defendant of child molestation because the facts which were used to prove child molestation were the same facts which proved statutory rape, and the court should have merged the child molestation conviction with the statutory rape conviction. Dorsey v. State, 265 Ga. App. 404, 593 S.E.2d 945 (2004).

Cruelty to children and rape.

- When the evidence used to establish the offense of cruelty to children was grabbing and pulling the victim's hair and holding the victim's throat, and the offense of rape, including the element of force, was amply proven by the subsequent events including the defendant's threats to kill the victim before and during intercourse, the jury was authorized to conclude that two separate and distinct offenses were committed. Love v. State, 190 Ga. App. 264, 378 S.E.2d 893 (1989), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Lesser offense of cruelty to children did not merge into the greater offenses of rape and aggravated child molestation, where the facts that the victim was threatened and terrorized, that the victim screamed in pain, and that the victim continued to experience pain and discomfort and would suffer forever from the venereal diseases contracted from defendant were not needed to prove the elements of rape and aggravated child molestation. Ranalli v. State, 197 Ga. App. 360, 398 S.E.2d 420 (1990).

Charges of rape, statutory rape, incest, aggravated child molestation, sodomy, and cruelty to children.

- Charges of rape, statutory rape, incest, aggravated child molestation, sodomy, and cruelty to children did not merge into the single count of cruelty to children where the evidence showed that defendant repeatedly sexually assaulted and sodomized the victim, defendant's 13-year old adopted daughter, over a nine-month period. Edmonson v. State, 219 Ga. App. 323, 464 S.E.2d 839 (1995), overruled on other grounds, Collins v. State, 229 Ga. App. 658, 495 S.E.2d 59 (1997).

Sexual battery can be a lesser included offense of child molestation in particular cases where the facts alleged in the indictment for child molestation also include all of the elements of sexual battery. Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).

Even though the facts in an indictment for child molestation were sufficient to charge the lesser offense of sexual battery, where the evidence presented demanded a finding of child molestation or nothing, the trial court did not err by refusing to charge on sexual battery. Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).

Sexual battery does not differ from child molestation in the manners set forth in O.C.G.A. § 16-1-6(2). Teasley v. State, 207 Ga. App. 719, 429 S.E.2d 127 (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996).

Indictment taken together with the evidence indicated that sexual battery was not a lesser included offense of child molestation in case as a matter of fact, and there was no error in the trial court's refusal to charge the jury on the law of sexual battery for such a charge was not authorized by the law or the evidence. Teasley v. State, 207 Ga. App. 719, 429 S.E.2d 127 (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996).

Sodomy count merged into child molestation, where the offense of sodomy as alleged was included as a matter of fact in the offense of child molestation as alleged. Horne v. State, 192 Ga. App. 528, 385 S.E.2d 704 (1989), cert. denied, 494 U.S. 1006, 110 S. Ct. 1302, 108 L. Ed. 2d 749 (1990).

Sodomy is a lesser included offense of aggravated sodomy. Stover v. State, 256 Ga. 515, 350 S.E.2d 577 (1986).

Statutory rape included in crime of aggravated child molestation.

- Crime of statutory rape was included, as a matter of fact, in the crime of aggravated child molestation since both convictions were in fact based upon the same single act. Andrews v. State, 200 Ga. App. 47, 406 S.E.2d 801 (1991).

There was no error for sentencing defendant for both offenses for which defendant was convicted, where defendant was indicted for statutory rape and for molesting the victim by fondling her breasts. No elements of each offense are necessarily elements of the other, thus the crimes for which he was convicted arose from two separate acts as a matter of fact. Bryant v. State, 204 Ga. App. 856, 420 S.E.2d 801 (1992); Baker v. State, 211 Ga. App. 515, 439 S.E.2d 668 (1993).

While an indictment did not charge the defendant with statutory rape, O.C.G.A. § 16-6-3, the allegations of the indictment notified the defendant that statutory rape could have been considered a lesser included offense of the indicted crime of child molestation; since the defendant admitted that the defendant tried to place his penis in the victim's vagina, and since the victim testified that "it hurt," a jury instruction on statutory rape as a lesser included offense of child molestation was proper. Stulb v. State, 279 Ga. App. 547, 631 S.E.2d 765 (2006).

Attempted statutory rape and child molestation.

- Trial court did not err in merging an attempted statutory rape charge into a child molestation charge as the state was required to prove the commission of an immoral or indecent act (removing the victim's and defendant's clothing), the victim's age was less than 16, and defendant's intent to arouse or satisfy defendant's own or the child's sexual desires; thus, the state used up the evidence that defendant committed attempted statutory rape in establishing that defendant committed child molestation. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).

Trial court did not err in merging an attempted statutory rape charge into a child molestation charge, instead of merging the child molestation counts into the attempted statutory rape count, as the evidence establishing that defendant fondled the victim's breasts was not used up in proving that defendant removed their clothing and attempted penetration; accordingly, three child molestation charges were not subject to merger with the attempted statutory rape count. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).

Charge on public indecency as lesser included offense of child molestation.

- Although the trial court should have charged the jury on public indecency as a lesser included offense to the charge of child molestation, any error was harmless as it was highly probable that the failure to give the public indecency charge did not contribute to the child molestation verdicts; furthermore, the trial court did not err in refusing to charge the jury on simple assault as the indictment did not allege acts which could support a conviction for simple assault as a matter of law. Damare v. State, 257 Ga. App. 508, 571 S.E.2d 507 (2002).

Other Offenses Involving Children

Battery lesser included offense of cruelty to children.

- Where the evidence was sufficient to establish that defendant repeatedly struck defendant's nine-year-old child on the back, buttocks, and legs with defendant's hand, leaving several visible, handprint-shaped bruises, battery was a lesser included offense of cruelty to children. Bennett v. State, 244 Ga. App. 149, 534 S.E.2d 881 (2000).

No merger of aggravated battery and cruelty to children.

- Aggravated battery and cruelty to children each requires proof of at least one additional element which the other does not, and the two crimes are not so closely related that multiple convictions are prohibited under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct establishes the commission of both aggravated battery and cruelty to children, the two crimes do not merge, and thus a defendant was properly convicted of both crimes (overruling Jones v. State, 276 Ga. App. 762 (624 S.E.2d 291) (2005); Etchinson v. State, 245 Ga. App. 449 (538 S.E.2d 87) (2000); and Harmon v. State, 208 Ga. App. 271 (430 S.E.2d 399) (1993)). Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Cruelty to children may be lesser included offense in aggravated assault with deadly weapon.

- Cruelty to children, which requires only "maliciously [causing] the child cruel or excessive physical . . . pain," can be lesser included crime under indictment for aggravated assault with a deadly weapon. Williams v. State, 144 Ga. App. 130, 240 S.E.2d 890 (1977); Cranford v. State, 186 Ga. App. 862, 369 S.E.2d 50 (1988).

Cruelty to children and use of fighting words.

- Evidence authorized a jury charge on the offense of "fighting words," where defendant schoolteacher was indicted for battery and cruelty to children, and the proof tracked the indictment which set forth words defendant said to a student which would fall within the parameter of those forbidden by the "fighting words" statute. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).

Cruelty to children and felony murder.

- Because the evidence established that the child victim had been subjected to multiple assaults to the head, limbs, and torso, which were in distinct stages of healing, and which occurred at various times, the predicate child cruelty offense count did not merge as a matter of fact into felony murder, and the trial court was authorized to enter a judgment of conviction and sentence on that count. Delacruz v. State, 280 Ga. 392, 627 S.E.2d 579 (2006).

Cruelty to children and malice murder.

- Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and16-5-70(b), the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, § 16-5-1(a), and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, § 16-5-70(b). Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010).

Cruelty to children count did not merge with reckless driving count.

- Trial court properly did not merge the appellant's convictions for cruelty to children in the second degree and serious injury by vehicle by the act of reckless driving with respect to the same victim for the purpose of sentencing because each offense required proof of a different wrongful act as the cruelty to children conviction required proof of facts not required by the serious injury by vehicle conviction and vice versa. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015).

Use of fighting words not included in offense of cruelty to children.

- Offense of use of fighting words is not included in the offense of cruelty to children as a matter of law. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).

Interference with custody was not a lesser included offense of kidnapping, as a matter of law or fact, where the indictment did not allege that the mother of the child was the victim of any crime. Stroud v. State, 200 Ga. App. 387, 408 S.E.2d 175 (1991).

Cruelty to children and battery.

- Although the trial court should have given the defendant's requested charge on battery, O.C.G.A. § 16-5-23.1, since the evidence authorized a finding that the defendant intentionally caused substantial physical harm and visible bodily harm to the victims by beating the victims with a bat and a belt, the failure to give the battery charge was harmless error in light of the overwhelming evidence of the commission of the greater offense, cruelty to children, O.C.G.A. § 16-5-70; the indictment alleged that the defendant unlawfully and maliciously caused the victims cruel and excessive physical and mental pain by striking the victims about the body with a belt and wooden bat. Dinkler v. State, 305 Ga. App. 444, 699 S.E.2d 541 (2010), overruled on other grounds, Stuart v. State, 318 Ga. App. 839, 734 S.E.2d 814 (2012).

Deprivation of minor and cruelty to children.

- Trial court did not err in failing to merge the defendant's misdemeanor convictions for contributing to the deprivation of a minor, O.C.G.A. § 16-12-1(b)(3), with the defendant's corresponding felony convictions for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c), pursuant to the "required evidence" test, the offenses did not merge as a matter of law; the offenses of cruelty to children in the second degree and contributing to the deprivation of a minor each have at least one essential element that the other does not: causing the child cruel or excessive physical or mental pain and wilfully failing to provide the child with the proper care necessary for his or her health, respectively. Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362 (2011).

Other Property Offenses

Burglary and robbery.

- Statutory definition of burglary and robbery makes it clear that legislature intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by same proof of all facts, thus neither crime is a lesser, or included, offense of the other as a matter of law or fact. Moore v. State, 140 Ga. App. 824, 232 S.E.2d 264 (1976).

Burglary and financial transaction card theft.

- Defendant was properly convicted of both burglary and financial transaction card theft after gaining entry into the dwelling as each offense had distinct elements. McConnell v. State, 263 Ga. App. 686, 589 S.E.2d 271 (2003).

Burglary conviction and entering an automobile with intent to commit a theft conviction did not merge as the state was required to show unlawful entry into a warehouse to convict defendant of burglary, but not to obtain a conviction for entry of automobile with intent to commit a theft; the burglary offense was completed when defendant entered the warehouse without authority and with the intent to commit the theft of the computers; the automobile offense occurred when defendant entered the victim's car with the intent to take the computers. Morris v. State, 274 Ga. App. 41, 616 S.E.2d 829 (2005).

State may convict and punish accused for burglary and unlawful possession of firearm by a previously convicted felon, when the firearm was taken in the burglary. The offenses charged were separate and distinct and there was no merger; evidence used to establish the burglary was not again used to establish the later crime of possession of a weapon by a convicted felon. Bogan v. State, 177 Ga. App. 614, 340 S.E.2d 256 (1986).

Criminal trespass and criminal damage to property are identical crimes except for the amount of damage required for conviction and the former is a lesser included offense of the latter. Merrell v. State, 162 Ga. App. 886, 293 S.E.2d 474 (1982).

Because it was undisputed that the victim failed to testify regarding the value of the damage to the subject property, an adjudication for the offense of second-degree criminal damage to property entered against a juvenile was vacated; however, given evidence that the juvenile intentionally damaged the property of another without consent, and the damage was $500 or less, an adjudication could be entered on a charge of criminal trespass, which did not violate the juvenile's due process right to be notified of the charges. In the Interest of J.T., 285 Ga. App. 465, 646 S.E.2d 523 (2007).

First and second degree criminal damage to property do not merge.

- Trial court did not err in failing to merge the defendant's convictions for the criminal damage to property charges because criminal damage to property in the first degree required evidence that the defendant acted in a manner that endangered human life, whereas criminal damage to property in the second degree required evidence that the damage to property exceeded $500, neither of which was required in the other. Sullivan v. State, 331 Ga. App. 592, 771 S.E.2d 237 (2015).

Criminal damage as lesser included offense of arson.

- Criminal damage to property in the second degree is a lesser included offense of arson in the first degree. One who commits first-degree arson has also committed criminal damage to property when the property in question belongs to another, but while the latter crime is established by the same conduct as the former, it requires proof of a "less culpable mental state" under the Criminal Code. Bryant v. State, 188 Ga. App. 505, 373 S.E.2d 289 (1988).

Trial court properly merged a conviction of criminal damage to property in the second degree, in violation of O.C.G.A. § 16-7-23(a)(1), into a conviction for arson in the second degree, in violation of O.C.G.A. § 16-7-61, as the arson was not a lesser included offense of the criminal damage offense pursuant to O.C.G.A. § 16-1-6(1); arson required the higher mentally culpable state of knowingly, rather than the criminal damage scienter requirement of intentionally, and arson required that the damage to the property have been caused by fire or explosive. Youmans v. State, 270 Ga. App. 832, 608 S.E.2d 300 (2004).

Theft by receiving not lesser included offense of burglary as matter of fact or law. State v. Bolton, 144 Ga. App. 797, 242 S.E.2d 378 (1978).

Theft by taking as included offense of theft by receiving.

- When proof of recent unexplained possession of stolen property was sufficient in itself to prove theft by taking but was only one element necessary to prove theft by receiving, theft by taking must be considered an included offense in theft by receiving. Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978).

Theft by taking as lesser included offense of robbery.

- Defendant's claim of error in the failure to instruct the jury on theft by taking was rejected as defendant failed to request an instruction on theft by taking as a lesser included offense of robbery. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005).

Theft by taking a motor vehicle and theft by taking purse.

- Trial court erred by failing to merge a theft by taking of a motor vehicle count with a theft by taking a purse count as the state conceded that the record was unclear as to whether the theft of the vehicle and the theft of the purse constituted two separate acts, and the evidence appeared to show that the victim's purse was stolen as a result of being inside the car when the car was stolen by the defendant. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).

Plow and tractor were stolen at same time from same place.

- In prosecution for theft, where evidence showed that tractor and plow were stolen at same time and from same place and victim, provisions of former Code 1933, § 26-506 concerning multiple prosecutions for same conduct, prohibited multiple conviction, since theft of plow was included within larceny of tractor. Brogdon v. State, 138 Ga. App. 900, 228 S.E.2d 5 (1976) (see O.C.G.A. § 16-1-7(a)(1)).

Criminal trespass and burglary.

- In prosecution for child molestation and burglary, defendant was not entitled to an instruction on criminal trespass where defendant's claim of alibi did not reasonably raise the inference that defendant entered the home with a less culpable state of mind than the felonious intent of a burglar as charged in the indictment. Brewer v. State, 219 Ga. App. 16, 463 S.E.2d 906 (1995).

Attempted arson and criminal trespass.

- Where the indictment which charged defendant with attempted arson in the first degree alleged that defendant poured gasoline on the front porch of a house and threatened to burn the house, and neither the indictment nor O.C.G.A. § 16-7-60 applied to defendant's act of pouring gasoline on a rug which was on the porch, the facts as alleged in the indictment were insufficient to establish criminal trespass regarding the rug; and, therefore, the trial court properly declined to instruct the jury on criminal trespass as a lesser included offense of attempted arson. Dodson v. State, 257 Ga. App. 344, 571 S.E.2d 403 (2002).

Criminal damage to property and criminal trespass.

- Trial court did not err when it reduced a charge of criminal damage to property in the second degree to criminal trespass when the state failed to prove damages in excess of $500, instead of granting defendant's motion for acquittal on the charge. The evidence showed that defendant broke the windshield and at least one other window on defendant's wife's car during an argument and therefore was sufficient to sustain defendant's conviction for criminal trespass. Hill v. State, 259 Ga. App. 363, 577 S.E.2d 61 (2003).

Vehicular Offenses

Driving with a suspended or revoked license was a lesser included offense of operating a motor vehicle after revocation of one's license as an habitual violator, where defendant had been stopped by the police while operating an automobile on an interstate highway at a time when the Georgia driver's license was revoked due to the driver having been declared a habitual violator. Parks v. State, 180 Ga. App. 31, 348 S.E.2d 481 (1986).

After a defendant was convicted of driving with a suspended license in violation of O.C.G.A. § 40-5-121, and was later indicted for a violation of O.C.G.A. § 40-5-58 based upon defendant's operation of a motor vehicle after the defendant had been notified of having been declared a habitual violator, the trial court erred in denying the defendant's double-jeopardy plea. Whaley v. State, 260 Ga. 384, 393 S.E.2d 681 (1990).

Convictions under both O.C.G.A. §§ 40-5-58(c) and40-6-395(b)(5)(A) were proper under O.C.G.A. § 16-1-6, as the elements of both charged offenses required different proof; under O.C.G.A. § 40-5-58(c), the state proved that defendant was declared an habitual violator, was properly notified of such status, and that defendant operated a vehicle without having obtained a valid driver's license, while under O.C.G.A. § 40-6-395(b)(5)(A), proof that the driver committed a misdemeanor while fleeing or attempting to elude, that the driver was trying to escape arrest for a felony offense other than road violations, and that the driver committed one of the statutorily enumerated acts was required. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003).

Proof of motor vehicle theft included proof of aggravated assault.

- When there is no evidence of violence or physical assault upon the victim during the commission of the crimes alleged, proof of the crime of armed robbery included crime of aggravated assault as a matter of fact and likewise, proof of the crime of motor vehicle theft was included in armed robbery the convictions and sentences for aggravated assault and motor vehicle theft must be vacated. Jones v. State, 238 Ga. 51, 230 S.E.2d 865 (1976).

When motor vehicle theft is lesser included offense of armed robbery.

- When theft of automobile was part of armed robbery as a matter of fact, crime of motor vehicle theft became a lesser included offense of armed robbery, and separate conviction for motor vehicle theft cannot stand. Painter v. State, 237 Ga. 30, 226 S.E.2d 578 (1976).

Driving under the influence was lesser included offense of first degree vehicular homicide, and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987).

Convictions for driving under the influence of alcohol and reckless driving merged into a vehicular homicide conviction and were vacated. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

Because DUI was a predicate offense set out in the indictment against the defendant only as an element of the offense of vehicular homicide, in violation of O.C.G.A. § 40-6-393(a), and not as a separate crime for which defendant risked separate criminal liability, a trial court did not err by denying the defendant's plea in bar because, as a felony offense, prosecution on the vehicular homicide counts were commenced within four years after the commission of the crime as required by O.C.G.A. § 17-3-1(c); the expiration of the limitations period for the driving under the influence counts did not preclude a prosecution for vehicular homicide. Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886, cert. denied, No. S07C1816, 2007 Ga. LEXIS 768 (Ga. 2007).

Public drunkenness and driving under the influence.

- Public drunkenness is not, as a matter of fact or law, a lesser included offense of driving under the influence of alcohol to the extent it is less safe to drive. State v. Tweedell, 209 Ga. App. 13, 432 S.E.2d 619 (1993).

Improper lane change, driving without headlights, and driving under the influence of alcohol (DUI) convictions did not merge because the facts alleged in the accusation with regard to the DUI charge were not also sufficient to establish the lesser offenses of improper lane change and driving without headlights. Parker v. State, 249 Ga. App. 530, 549 S.E.2d 154 (2001).

Operating motor vehicle without insurance is not a lesser included offense of false swearing. Bowen v. State, 173 Ga. App. 361, 326 S.E.2d 525 (1985).

Reckless conduct was not a lesser included crime of driving under the influence as a matter of fact since the accusation included no allegation of harm or danger to another person and there was no proof of such at trial. Whiteley v. State, 188 Ga. App. 129, 372 S.E.2d 296.

Trial court erred in failing to merge defendant's convictions for reckless driving, speeding, and reckless conduct since defendant's conviction for reckless conduct was proved by fewer than all of the facts used to prove defendant's guilt of reckless driving, and the speeding charge, as alleged, was an element of both reckless driving and reckless conduct. Carrell v. State, 261 Ga. App. 485, 583 S.E.2d 167 (2003).

Reckless driving was not a lesser included offense to aggravated assault.

- Because Count 4, alleging aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, was likely to and actually did result in serious bodily injury, only required the state to prove that the defendant had the general intent to drive the van, the offense of reckless driving would not show a less culpable mental state than that which was required to establish the commission of the crime of aggravated assault as charged, and the trial court did not err by refusing to give the requested charge of reckless driving as a lesser included offense of aggravated assault as alleged in Count 4. Patterson v. State, 332 Ga. App. 221, 770 S.E.2d 62 (2015), aff'd, 299 Ga. 491, 789 S.E.2d 175 (2016).

Reckless driving was not a lesser included offense, as a matter of law or fact, of driving under the influence under O.C.G.A. § 16-1-6, as the facts in the State of Georgia's indictment of defendant were insufficient to support a reckless driving charge under O.C.G.A. § 40-6-390(a), and as a matter of law, the crimes were equally serious. Shockley v. State, 256 Ga. App. 892, 570 S.E.2d 67 (2002).

Defendant's conviction and sentence for speeding were vacated where the speeding offenses factually merged into the reckless driving offense for which defendant was also convicted because the same conduct, speeding, was used to prove both crimes. Fraser v. State, 263 Ga. App. 764, 589 S.E.2d 329 (2003).

Trial court's failure to merge defendant's convictions for driving recklessly and committing second degree vehicular homicide, in violation of O.C.G.A. §§ 40-6-390 and40-6-393, respectively, was not error for sentencing purposes, as the reckless driving offense was not the underlying offense of the homicide, but rather, improper lane change was, in violation of O.C.G.A. § 40-6-123(a); further, pursuant to O.C.G.A. § 16-1-6, there was no factual merger because the crimes were committed sequentially and separately. Cutter v. State, 275 Ga. App. 888, 622 S.E.2d 96 (2005).

Defendant's conviction for aggravated assault with an object under O.C.G.A. § 16-5-21(b)(2) with regard to pinning the victim to a house with a vehicle was affirmed because the defendant was not entitled to jury instructions on the lesser included crimes of reckless conduct and reckless driving since the base crime of simple assault under O.C.G.A. § 16-5-20(a)(2) did not require a specific intent to cause the victim to be apprehensive of receiving a violent injury. Patterson v. State, 299 Ga. 491, 789 S.E.2d 175 (2016).

Reckless driving was a lesser included offense to aggravated assault.

- Defendant was entitled to a new trial on the charge of aggravated assault upon a police officer in violation of O.C.G.A. § 16-5-21 because the trial court should have given the defendant's requested charge on reckless driving in violation of O.C.G.A. § 40-6-390(a) as a lesser included offense since there was evidence that the defendant did not intend to injure a police officer but that the defendant's decision to drive off suddenly with the officer in close proximity to the defendant's truck was nonetheless an act of criminal negligence, which would have supported a conviction for reckless driving. Young v. State, 294 Ga. App. 227, 669 S.E.2d 407 (2008).

Reckless driving and serious injury by vehicle.

- Trial court did not err by failing to merge a reckless-driving charge into a serious-injury-by-vehicle charge because the two crimes were entirely separate and distinct, requiring a showing of different elements and based on the defendant's drunk driving of a four-wheeler ATV with a 10-year-old passenger, who was brain-damaged when the defendant clipped a tractor and flipped the ATV; the state used the evidence of the clipping of the tractor scoop, which caused the rollover and injury to the child, as the elements of the serious-injury-by-vehicle offense, which was separate from and sequential to the reckless-driving offense, which was premised on the defendant's intoxication. Croft v. State, 278 Ga. App. 107, 628 S.E.2d 144 (2006).

Serious injury by vehicle and vehicular homicide.

- Five convictions for serious injury by vehicle and a conviction for vehicular homicide did not merge; although the convictions stemmed from one incident of driving under the influence, there were separate victims for each offense. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

Double jeopardy issues.

- Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006).

Miscellaneous Crimes

Aggravated stalking did not merge with burglary count.

- Trial court did not err by not merging a defendant's aggravated stalking count into a burglary count based upon the defendant's contention that under the actual evidence test, the same factual evidence was used to prove both crimes; as to prove the burglary count, the state had to prove that the defendant entered the victim's residence without authority and with the intent to commit aggravated stalking, and to prove the aggravated stalking count, the state had to prove that the defendant surveilled and contacted the victim in violation of a condition of probation for the purpose of harassing and intimidating the victim. As such, the burglary statute required that the state show entry into the residence, which was not required by the aggravated stalking statute, and, on the other hand, the aggravated stalking statute required that the state prove that the defendant actually contacted the victim, which was not required by the burglary statute that only required that the defendant contact the victim when the defendant entered the residence. Williams v. State, 293 Ga. App. 193, 666 S.E.2d 703 (2008).

Gambling and operating a gambling house are entirely different.

- Gambling is one thing and operating a gambling house is a kindred but entirely different thing; different evidence is required to convict of these separate offenses. No absurdity or repugnancy is created by acquittal of gambling and conviction of operating a gambling house. McGahee v. State, 133 Ga. App. 964, 213 S.E.2d 91 (1975).

Issuing bad checks and forgery.

- Offense of issuing bad checks is not a lesser included offense of forgery, and, in a prosecution for forgery, the trial court's failure to give a charge on issuing bad checks was not error. Adams v. State, 217 Ga. App. 759, 458 S.E.2d 918 (1995).

Negotiating a fictitious check and forgery.

- Offense of negotiating a fictitious check is a lesser included offense of forgery, and, in a prosecution for forgery, the trial court's failure to give a charge on negotiating fictitious checks constituted reversible error. Adams v. State, 217 Ga. App. 759, 458 S.E.2d 918 (1995).

Theft by taking and forgery.

- After defendant pled guilty to theft by taking for writing fraudulent checks, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-6 or O.C.G.A. § 16-1-7(a) because the two crimes were not lesser included offenses of the other. Cade v. State, 262 Ga. App. 206, 585 S.E.2d 172 (2003).

Forgery and false writing.

- When the defendant was convicted of first-degree forgery under O.C.G.A. § 16-9-1 and false writing under O.C.G.A. § 16-10-20 for obtaining expungement order by presenting a Georgia Crimes Information Center certificate that had been altered to state that the defendant had no criminal record, counts were not included in each other under O.C.G.A. §§ 16-1-6 and16-1-7; false writing charge did not require proof that the writing purported to be made by authority of one who in fact gave no such authority, and forgery charge did not require proof that the writing was made or used in a matter within the jurisdiction of the district attorney's office. Jones v. State, 290 Ga. App. 490, 659 S.E.2d 875 (2008).

Possession of firearm not merged into accompanying felony.

- Offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery, so that the defendant can be convicted of both without statutory or constitutional prohibition. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991).

Trial court did not err in failing to merge an aggravated assault charge and firearm possession charges with an aggravated battery charge because the crimes did not merge legally or factually since each of the crimes required proof of a fact that the other crimes did not. Gant v. State, 291 Ga. App. 823, 662 S.E.2d 895 (2008).

Multiple firearms possession.

- Trial court properly refused to merge the two arms-possession counts for sentencing purposes because those charges were based on defendants' possession of two guns during the burglary; the acts were separate crimes involving multiple defendants, separate crimes for which each defendant bore individual responsibility as either a principal or an accessory. Dunbar v. State, 273 Ga. App. 29, 614 S.E.2d 472 (2005).

Simple battery as included in battery.

- Trial court erred by sentencing appellant on all three counts, two counts of simple battery, O.C.G.A. § 16-5-23(a)(1) (intentionally making physical contact of an insulting and provoking nature) and (a)(2) (intentionally causing physical harm), and the offense of battery, O.C.G.A. § 16-5-23.1 (intentionally causing visible bodily harm), in the accusation, rather than merging the two counts of simple battery with the battery, given that the evidence at trial established that each crime was established by proof of the same facts, except that the battery charge required proof that the defendant caused visible bodily harm. Hussey v. State, 206 Ga. App. 122, 424 S.E.2d 374 (1992).

Simple battery is not a lesser included offense of felony obstruction because it is a separate and independent offense wherein the intent is to make physical contact or cause physical harm. Pearson v. State, 224 Ga. App. 467, 480 S.E.2d 911 (1997).

Simple battery merged with robbery.

- Because the single continuous act of simple battery, O.C.G.A. § 16-5-23(a)(1), was the evidence required to show the "force" used to accomplish a robbery, O.C.G.A. § 16-8-40(a)(1), the defendant's battery convictions merged with the robbery conviction; the "use of force" charged in connection with the robbery was "hitting," which was the same type of force used in the continuous battery. Bonner v. State, 308 Ga. App. 827, 709 S.E.2d 358 (2011).

Simple battery convictions merged.

- Defendant's simple batteries convictions merged as a matter of fact because the three batteries were part of a continuous criminal act; the indictment charged the defendant with simple battery by "grabbing" the victim, "holding him down," and "hitting" the victim, respectively. Bonner v. State, 308 Ga. App. 827, 709 S.E.2d 358 (2011).

Aggravated battery counts merged.

- As to the two counts of aggravated battery, both counts were accomplished by the single act of throwing acid on the victim and, therefore, one count should have merged into the other. Fordham v. State, 352 Ga. App. 520, 835 S.E.2d 360 (2019).

Harassing telephone calls and terroristic threats.

- Depending on the facts, harassing telephone calls may be an included offense of terroristic threats. Todd v. State, 230 Ga. App. 849, 498 S.E.2d 142 (1998).

Because defendant's defense to the charge of terroristic threats was that defendant never made any threats or intimidating remarks at all, the trial court did not err in refusing to give defendant's request for an instruction on the offense of harassing telephone calls. Todd v. State, 230 Ga. App. 849, 498 S.E.2d 142 (1998).

In a prosecution on three counts of aggravated stalking, the defendant was not entitled a jury charge on the lesser included offense of harassing telephone calls, based on the fact that under the evidence presented, the defendant was either guilty of the indicted offenses or was guilty of no offense whatsoever. Patterson v. State, 284 Ga. App. 780, 645 S.E.2d 38 (2007).

Harassing phone calls and aggravated stalking.

- Trial court did not err by failing to give the defendant's requested charges on the lesser included offenses of harassing phone calls and violation of a temporary protective order because the state's evidence was sufficient to establish all of the elements of the aggravated stalking offenses as indicted; under the evidence, either the defendant was guilty of the indicted offenses or the defendant was guilty of no offense whatsoever. Brooks v. State, 313 Ga. App. 789, 723 S.E.2d 29 (2012), cert. denied, No. S12C0974, 2012 Ga. LEXIS 1035 (Ga. 2012).

Shoplifting.

- When the evidence was uncontradicted that the value of two watches exceeded $300 each, a jury charge on misdemeanor shoplifting was not warranted and the defendant was properly convicted of felony shoplifting based on the retail value of the goods. Reeves v. State, 261 Ga. App. 466, 582 S.E.2d 590 (2003).

Violation of oath by a public officer is a lesser included offense of bribery. Nave v. State, 171 Ga. App. 165, 318 S.E.2d 753 (1984); Nave v. Helms, 845 F.2d 963 (11th Cir. 1988).

False swearing and malicious confinement.

- Defendant's convictions for false swearing under O.C.G.A. § 16-10-71, proven by evidence that defendant made false statements in an affidavit seeking an involuntary commitment order for the victim, and malicious confinement under O.C.G.A. § 16-5-43, supported by proof apart from the execution of the false affidavit, did not merge as a matter of fact. Washington v. State, 271 Ga. App. 764, 610 S.E.2d 692 (2005).

Felony escape and misdemeanor escape.

- Entry of a guilty plea was not a judgment of conviction until sentence was imposed; therefore, a defendant who walked away from the courthouse after plea entry but before sentencing was not guilty of felony escape, but could be convicted only of misdemeanor escape. Dorsey v. State, 259 Ga. App. 254, 576 S.E.2d 637 (2003).

Mutiny in a penal institution and aggravated assault require proof of different elements and, therefore, the former offense cannot be a lesser included offense of the latter. Bierria v. State, 232 Ga. App. 622, 502 S.E.2d 542 (1998).

Public drunkenness not included in crime of public indecency.

- With regard to the defendant's conviction for felony public indecency for urinating in public, the trial court's refusal to charge the jury on public drunkenness as a lesser included offense of public indecency was not error because the crime of public drunkenness requires proof that the defendant was intoxicated, which the crime of public indecency does not; the crime of public drunkenness does not require a lewd exposure of sexual organs, which is required by the crime of public indecency; and, the crime of public indecency requires proof of exposure of sexual organs, which the crime of public drunkenness does not; therefore, the offense of public drunkenness was not included in the crime of public indecency. Loya v. State, 321 Ga. App. 430, 740 S.E.2d 382 (2013).

Failure to request lesser included offense instruction.

- Counsel was not ineffective for failing to request a jury instruction on the crime of pimping as a lesser-included offense of trafficking a minor for sexual servitude without the use of coercion because the jury found the defendant guilty on the three trafficking without coercion counts and on three related counts charging the greater offense of trafficking the victim for sexual servitude through the use of coercion; thus, the defendant did not meet the defendant's burden of showing that there was a reasonable possibility that the jury would have acquitted the defendant on all of the indicted offenses and, instead, convicted the defendant only of pimping if counsel had requested a jury instruction on pimping as a lesser-included offense. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018), overruled on other grounds by Thomas v. State, 352 Ga. App. 640, 835 S.E.2d 640 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Separate prosecutions for municipal and state law violations.

- An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 299 et seq. 41 Am. Jur. 2d, Indictments and Informations, §§ 106, 282.

C.J.S.

- 42 C.J.S., Indictments and Informations, § 298 et seq.

ALR.

- Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626.

Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636.

Duty to charge as to reasonable doubt as between different degrees of crime or included offenses, 20 A.L.R. 1258.

Forgery of names of several individuals to the same instrument as more than one offense, 33 A.L.R. 562.

Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564; 172 A.L.R. 1053.

Acquittal or conviction of assault and battery as bar to prosecution for rape, or assault with intent to commit rape, based on same transaction, 78 A.L.R. 1213.

Conviction of lesser offense, against which statute of limitations has run, where statute has not run against offense with which defendant is charged, 47 A.L.R.2d 887.

Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341.

When should jury's deliberation proceed from charged offense to lesser-included offense, 26 A.L.R.5th 603.

Propriety of lesser-included-offense charge to jury in federal prosecution for crime involving property rights, 105 A.L.R. Fed. 669.

Propriety of lesser-included-offense charge in federal prosecution of narcotics defendant, 106 A.L.R. Fed. 236.

16-1-7. Multiple prosecutions for same conduct.

  1. When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if:
    1. One crime is included in the other; or
    2. The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
  2. If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c) of this Code section.
  3. When two or more crimes are charged as required by subsection (b) of this Code section, the court in the interest of justice may order that one or more of such charges be tried separately.

(Code 1933, § 26-506, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1982, p. 3, § 16.)

Cross references.

- Multiple jeopardy, U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII.

Fraud generally, § 16-9-50 et seq.

Law reviews.

- For survey article citing developments in Georgia criminal law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 95 (1981). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970). For comment, "Grady v. Corbin: An Unsuccessful Effort to Define Same Offense," see 25 Ga. L. Rev. 143 (1990).

JUDICIAL DECISIONS

General Consideration

Statute proscribes multiple convictions and successive prosecutions for same conduct. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).

O.C.G.A. § 16-1-7 constitutes Georgia's statutory bar to successive prosecutions, the procedural aspect of double jeopardy. Mann v. State, 160 Ga. App. 527, 287 S.E.2d 325 (1981).

The state is required to prosecute all offenses arising out of the same course of conduct at the same time in a single prosecution. Where the state attempts to charge the defendant with all offenses arising out of a vehicular accident involving a death, but the trial judge, finding no allegations in the indictment permitting proof of an exception to the statute of limitations, permits no evidence as to the counts other than the one charging murder, and the state proceeds with a prosecution as to the murder count, any other counts as to vehicular homicide, reckless driving, driving under the influence, and driving off the center lane are barred by procedural double jeopardy. State v. Stowe, 167 Ga. App. 65, 306 S.E.2d 663 (1983).

O.C.G.A. § 16-1-7(a) precludes conviction or punishment for more than one crime if one is included in the other as a matter of law or fact. Teal v. State, 203 Ga. App. 440, 417 S.E.2d 666, cert. denied, 203 Ga. App. 908, 417 S.E.2d 666 (1992).

Under O.C.G.A. §§ 16-1-6 and16-1-7, a defendant may be prosecuted for two crimes based on the same conduct, but defendant may not be convicted of more than one crime if one crime is included in the other. Padgett v. State, 205 Ga. App. 576, 423 S.E.2d 411 (1992).

Although the heading of O.C.G.A. § 16-1-7 relates to multiple prosecutions for the same conduct, it actually proscribes multiple convictions and successive prosecutions for the same conduct. State v. Kennedy, 216 Ga. App. 405, 454 S.E.2d 600 (1995).

An accused may be prosecuted for both rape and child molestation based on the same conduct, but he may not be convicted of both Mackey v. State, 235 Ga. App. 209, 509 S.E.2d 68 (1998).

When defendant was charged with child molestation, incest, interstate interference with custody, and statutory rape, all concerning the same victim, except for one count naming the parents as victims, and defendant pled guilty to interstate interference with custody and statutory rape, with the state requesting a nolle prosequi order on the remaining counts, it was not error to convict defendant of statutory rape and enter a nolle prosequi order as to child molestation and incest on the theory that all charges arose from the same events, because defendant was only convicted of statutory rape and interstate interference with custody, and nothing showed that defendant was improperly convicted of lesser included crimes based on the same conduct under O.C.G.A. § 16-1-7(a)(1). Hernandez v. State, 276 Ga. App. 57, 622 S.E.2d 594 (2005).

Trial court erred in granting the defendant's plea in bar on the ground of procedural double jeopardy because the defendant failed to demonstrate actual knowledge of all the pending charges on the part of the proper prosecuting officer as the defendant did not establish the identity of the prosecuting officer, if any, at the defendant's guilty plea in recorder's court; the trial court's deputy clerk testified that no prosecutor was assigned to the traffic docket on which the defendant's expired tag charge was mistakenly entered; and the defendant did not establish that any prosecuting officer in recorder's court was aware of all the pending charges. State v. Hill, 333 Ga. App. 785, 777 S.E.2d 265 (2015).

Purpose of statute.

- First policy underlying double jeopardy bar is to prevent harassment of accused by successive prosecutions. Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975).

Statute was designed to protect accused against the harassment of multiple prosecutions arising from same conduct. Waites v. State, 238 Ga. 683, 235 S.E.2d 4 (1977).

Effect of conviction.

- Defendant can be convicted on only one of multiple pending indictments; the remaining indictments are to be dismissed following trial on one of the cases on the merits. Geckles v. State, 177 Ga. App. 70, 338 S.E.2d 473 (1985).

When a jury convicted a defendant on an aggravated battery charge, but acquitted defendant on charges of obstruction, simple battery, and aggravated assault and could not reach a verdict on a second charge of aggravated assault, the jury's inability to reach a verdict on the second aggravated assault charge, a lesser included offense, did not invalidate the jury verdict on the aggravated battery charge. Collier v. State, 195 Ga. App. 380, 393 S.E.2d 509 (1990).

Double jeopardy questions controlled by O.C.G.A. §§ 16-1-6,16-1-7, and 16-1-8. - Former 1968 Criminal Code (see now O.C.G.A. T. 16) extends proscription of double jeopardy beyond that provided for in United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must be determined under the proscriptions of former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8). State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975).

Former 1968 Criminal Code (see now O.C.G.A. T. 16) extends double jeopardy proscription beyond that provided for in United States and Georgia Constitutions. Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975) (see O.C.G.A. T. 16).

Former Code 1933, §§ 26-505 through 26-507 see now O.C.G.A. §§ 16-1-6 through16-1-8) provided an expanded statutory test for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6 through16-1-8 which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).

After a defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution as these acts occurred at different times and locations, with distinct quantities of contraband, even though the defendant might have at some earlier time possessed all the marijuana in defendant's home; thus, the defendant's argument on substantive double jeopardy was rejected. Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004).

Pretrial intervention program on related charges did not bar prosecution.

- Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21(b) and16-8-2, was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a), in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017).

Jeopardy did not attach because there was no adjudication of guilt.

- Because the defendant's alleged mistake of fact regarding a charge of possession of a firearm by a convicted felon required consideration of facts extrinsic to the accusation to be decided by a jury, the trial court erred in dismissing the charge, sua sponte; moreover, as such dismissal was not an adjudication of guilt, the state could appeal from the same without violating the defendant's double jeopardy rights. State v. Henderson, 283 Ga. App. 111, 640 S.E.2d 686 (2006).

Former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) distinguish between two aspects of double jeopardy: first, limitations upon multiple prosecutions for crimes arising from same conduct (referred to as procedural bar of double jeopardy); and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes (referred to as substantive bar of double jeopardy). Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Procedural aspect of double jeopardy rule.

- Procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct. Teal v. State, 203 Ga. App. 440, 417 S.E.2d 666, cert. denied, 203 Ga. App. 908, 417 S.E.2d 666 (1992).

Trial court properly granted the defendant's plea in bar and plea of former jeopardy in a burglary prosecution as the state improperly terminated the first trial by dismissing the indictment after jeopardy attached without the defendant's consent, and the second burglary prosecution, although alleging a different date, residence, and accomplice, was based on the same material facts as the first indictment. State v. Jackson, 290 Ga. App. 250, 659 S.E.2d 679 (2008).

Statute affords protection broader than defense of double jeopardy.

- Former Code 1933, § 26-506 gave accused some protection from repeated prosecutions in those situations when the defense of double jeopardy was not available and yet accused should not be worn down by multiple prosecutions arising from the same conduct. Johnson v. State, 130 Ga. App. 134, 202 S.E.2d 525 (1973).

Abandonment of statutory double jeopardy protections meant constitutional protections only remained.

- Defendant raised the state constitutional provision and O.C.G.A. §§ 16-1-7 and16-1-8 in the defendant's plea of former jeopardy; however, the defendant expressly abandoned the statutory grounds at the hearing. By choosing that procedure, defendant actually relied upon the minimum constitutional protections against double jeopardy and chose to forego the additional protections provided by Georgia statutory law; thus, the trial court erred in applying Georgia statutory law in the instant case. Garrett v. State, 306 Ga. App. 429, 702 S.E.2d 470 (2010).

Statute superseded by more specific carjacking statute.

- O.C.G.A.16-5-44.1(d) supersedes O.C.G.A. § 16-1-7 in carjacking cases. Campbell v. State, 223 Ga. App. 484, 477 S.E.2d 905 (1996).

Attachment of jeopardy.

- Defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, defendant has been arraigned, has pled, and a jury has been impaneled and sworn. Geckles v. State, 177 Ga. App. 70, 338 S.E.2d 473 (1985).

O.C.G.A. § 16-1-7(b) presupposes that defendant has been subjected to a previous prosecution and a prosecution encompasses more than mere return of an indictment. State v. Daniels, 206 Ga. App. 443, 425 S.E.2d 366 (1992).

Trial court erred in holding that jeopardy had not attached on the previous charges filed against the defendant due to a mistrial because the defendant was placed in jeopardy when the jury was sworn in the first trial. Herrington v. State, 315 Ga. App. 101, 726 S.E.2d 625 (2012).

Pendency of a former indictment for same offense does not provide a ground for a plea of double jeopardy because even if an accused has been arraigned and has entered a plea, the accused is not placed in jeopardy until a jury is impaneled and sworn. Teal v. State, 203 Ga. App. 440, 417 S.E.2d 666, cert. denied, 203 Ga. App. 908, 417 S.E.2d 666 (1992).

Multiple accusations and indictments not barred.

- O.C.G.A. § 16-1-7(b) is a bar to multiple prosecutions, and does not forbid multiple accusations or multiple indictments. Cochran v. State, 176 Ga. App. 58, 335 S.E.2d 165 (1985).

To constitute a "previous prosecution" within the meaning of O.C.G.A. §§ 16-1-7(b) and16-1-8(b), the defendant previously must have been "placed in jeopardy" as to at least one of the offenses arising out of the same conduct as the offense for which the state is subsequently attempting to prosecute defendant. State v. Smith, 185 Ga. App. 694, 365 S.E.2d 846 (1988).

Plea of guilty to an indictment or complaint with its entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of O.C.G.A. §§ 16-1-7(b) and16-1-8(b). State v. Smith, 185 Ga. App. 694, 365 S.E.2d 846 (1988).

Because the crimes alleged in the accusation and indictment involved different victims, locations, and times, and hence did not arise from the same conduct, the trial court did not err in denying the defendant's motion to dismiss the charges in the indictment on double jeopardy grounds based on the defendant's prior plea to the charges in the accusation. Davis v. State, 287 Ga. App. 535, 652 S.E.2d 177 (2007).

Trial court properly rejected the defendant's argument that the state was collaterally estopped from pursuing the robbery charges as the court found that the alleged armed robbery was completed before the vehicle was taken and the defendant presented no evidence that the robbery charges were known to the prosecuting attorney when the earlier prosecution for theft by receiving the vehicle was brought. Holt v. State, 339 Ga. App. 230, 793 S.E.2d 516 (2016).

Multiple convictions and punishments for one crime improper.

- Because no evidence showed that the information concerning the defendant was known to the proper prosecuting officer in Gwinnett County, and because no basis otherwise existed for a charge of conspiracy to traffic based on what officers recovered in the search of the defendant's home, the appeals court refused to state that the defendant could have been convicted of conspiracy to traffic methamphetamine in Gwinnett County, or that Gwinnett County should have charged the defendant with this crime; hence, under these circumstances, the Dawson County indictment was not barred under O.C.G.A. §§ 16-1-6(b)(1) and16-1-7(b). Bradford v. State, 283 Ga. App. 75, 640 S.E.2d 630 (2006).

Appeals court agreed that because there was only one homicide victim, only one life sentence, and not three, could be imposed, because such improperly subjected the defendant to multiple convictions and punishments for one crime. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007).

Trial court erred in imposing a life sentence for each of the two indicted counts of felony murder, to be served concurrently, because the defendant could not be sentenced on two felony murder counts when only one person was killed as that improperly subjected the defendant to multiple convictions and punishments for one crime. Tye v. State, 298 Ga. 474, 782 S.E.2d 10 (2016).

Substantive bar against double jeopardy not waived by guilty plea.

- Right to be free of multiple convictions for the same conduct has been referred to as the substantive bar against double jeopardy, and it is not waived either by the defendant's entry of a guilty plea or by defendant's failure to assert it in the trial court. Redding v. State, 188 Ga. App. 805, 374 S.E.2d 339 (1988).

Waiver of procedural and substantive bar against double jeopardy.

- Although the procedural bar against double jeopardy found in O.C.G.A. § 16-1-8 can be waived by failure to assert it in writing prior to trial, the failure to file a written plea of former jeopardy prior to trial will not defeat an accused's right to be free of multiple convictions, under O.C.G.A. § 16-1-7, for the criminal act. McClure v. State, 179 Ga. App. 245, 345 S.E.2d 922 (1986).

When the defendant had already pled guilty, been sentenced, and completed sentence for certain crimes, an effort to reindict the defendant based on a violation of a plea agreement that the defendant would not seek public office was properly dismissed on the grounds of double jeopardy; the defendant's agreement to submit to such prosecution by waiving bar to prosecution, regardless of the failure to mention double jeopardy, was ineffectual. State v. Barrett, 215 Ga. App. 401, 451 S.E.2d 82 (1994), rev'd on other grounds, 265 Ga. 489, 458 S.E.2d 620 (1995).

Successive municipal and state court prosecutions.

- Georgia's double jeopardy statute is inapplicable to successive municipal and state court prosecutions. State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979); Parker v. State, 170 Ga. App. 333, 317 S.E.2d 209 (1984); Dickinson v. State, 191 Ga. App. 467, 382 S.E.2d 187 (1989); Puckett v. State, 239 Ga. App. 582, 521 S.E.2d 634 (1999).

O.C.G.A. § 16-1-7(a) does not preclude successive state and municipal prosecutions, only successive prosecutions for state crimes. Fuller v. State, 169 Ga. App. 468, 313 S.E.2d 745 (1984).

Subsequent prosecution of defendant for robbery after defendant pled guilty in traffic court to fleeing to elude did not violate O.C.G.A. § 16-1-7 since there was no evidence that the traffic court solicitor knew about the robbery indictment when defendant's guilty plea was entered. Blackwell v. State, 230 Ga. App. 611, 496 S.E.2d 922 (1998).

When a defendant pled guilty to an alcohol possession charge in state court, O.C.G.A. § 16-1-7(b) did not bar a subsequent prosecution in superior court of felony molestation and sexual battery charges allegedly arising out of the same conduct; the defendant did not show that the officer who handled the state court action knew of the other alleged crimes. Barlowe v. State, 286 Ga. App. 133, 648 S.E.2d 471 (2007).

Subsequent prosecution not barred since municipal prosecutor without knowledge.

- Defendant's motion to dismiss on double jeopardy grounds an accusation brought in the superior court alleging separate charges of fleeing or attempting to elude an officer, misdemeanor obstruction of an officer, reckless driving, and speeding was properly denied as the superior court prosecution was not barred because there was no evidence that the municipal court prosecutor had actual knowledge of the criminal conduct taking place outside of the city limits as the prosecutor explained that the only way cases came to the prosecutor was by way of a citation issued by the city; and any state warrants or reports associated with the defendant's case did not and would not have gone to the municipal prosecutor. Millsaps v. State, 341 Ga. App. 337, 801 S.E.2d 63 (2017).

Plea on local ordinance did not impact state prosecution.

- Order barring the defendant's prosecution for aggravated assault and aggravated battery on double jeopardy grounds based on the defendant's prior guilty plea to violating a disorderly conduct ordinance, a charge arising from the same fight, was error because the defendant failed to set forth the elements of the ordinance, and failed to properly plead and prove the ordinance; Georgia courts are not allowed to take judicial notice of local ordinances, but, rather, the ordinances must be alleged and proved by production of the original or of a properly certified copy. Further, because the defendant failed to prove below that the charges could have been brought within the jurisdiction of a single court and that the proper prosecuting attorney knew of the recorder's court proceedings, the trial court was not authorized to grant the plea in bar under O.C.G.A. § 16-1-7(b). State v. Jeffries, 298 Ga. App. 141, 679 S.E.2d 368 (2009).

Offenses not arising from same transaction.

- When the defendant was convicted of driving under the influence in municipal court and then prosecuted for vehicular homicide and driving under the influence in superior court, the latter prosecution was not barred by principles of double jeopardy since the offenses did not arise from the same transaction and, because the offenses were completed at different times and in different locations, there was no single court with jurisdiction over all the crimes. Lefler v. State, 210 Ga. App. 609, 436 S.E.2d 777 (1993).

After the defendant was arrested for various traffic-related offenses following an accident and the officer investigating the accident found evidence of controlled substance violations, a separate prosecution of the traffic offenses after prosecution for the controlled substance offenses was not barred by double jeopardy since the offenses involved different acts and occurred on different dates and in different locations. State v. Steien, 214 Ga. App. 345, 447 S.E.2d 701 (1994).

Prosecution for forgery was not barred by O.C.G.A. § 16-1-7 where the forgery involved different parties, circumstances, locations, and times, and did not arise from the same transaction as other traffic and forgery charges. State v. Hulsey, 216 Ga. App. 670, 455 S.E.2d 398 (1995).

Following a mistrial in the trial of defendant for theft by taking, double jeopardy did bar defendant's reindictment on the original charge and an additional count of theft by receiving stolen property because the evidence showed the commission of separate crimes by separate individuals. Wilson v. State, 229 Ga. App. 455, 494 S.E.2d 267 (1997).

Offense of cruelty to children did not arise from the same transaction as the offenses of possession of marijuana or simple battery and, therefore, prosecution for the former offense was not barred because defendant had been charged with the other offenses. State v. Cornette, 229 Ga. App. 487, 494 S.E.2d 289 (1997).

Appellate court found that the court was compelled to uphold the trial court's denial of the defendant's double jeopardy plea in bar on the basis that the defendant did not affirmatively show the prosecutor actually knew of the other crimes when the prosecutor prosecuted the first offense. Banks v. State, 320 Ga. App. 98, 739 S.E.2d 414 (2013).

Each and every transaction in which the defendant, the director and a fiduciary of the animal shelter, took money belonging to the animal shelter with the intent of depriving the facility of that money constituted a separate and distinct completed crime; thus, the defendant's convictions for theft by taking did not merge into one count. Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).

Trial court erred by granting the defendant's double jeopardy plea in bar because the crimes charged in the second indictment did not arise from the same conduct alleged in the first indictment as the possession of material depicting a minor engaged in sexual conduct, as alleged in the first indictment, was vastly different conduct from actually transmitting pornography to a child or fondling the child's buttocks as alleged in the second indictment. State v. Davis, 338 Ga. App. 580, 790 S.E.2d 821 (2016).

Prosecution on state and federal charges of murder and kidnapping held proper.

- Since the facts necessary to prove the federal charges of kidnapping and interstate travel with intent to commit murder for extortion are different from the facts necessary to prove the Georgia charges of murder and aggravated assault, there was no violation of either Georgia's statutes barring multiple prosecutions or the constitutional prohibition against double jeopardy, when the defendants were prosecuted in federal and state courts for all of the above offenses. Satterfield v. State, 256 Ga. 593, 351 S.E.2d 625 (1987).

Multiple underlying felonies in felony murder case.

- Appropriate manner for charging felony murder in instances when more than one underlying felony is alleged is to indict for one count of felony murder, and enumerate the multiple underlying felonies. State v. McBride, 261 Ga. 60, 401 S.E.2d 484 (1991).

If there are multiple underlying felonies, the state is not required to elect between those felonies when charging the defendant with felony murder. State v. McBride, 261 Ga. 60, 401 S.E.2d 484 (1991).

Malice murder conviction vacates felony murder charge.

- By operation of O.C.G.A. § 16-1-7, the trial court's proper entry of a judgment of conviction upon the jury's finding defendant guilty of malice murder vacated a felony murder charge. Tiller v. State, 267 Ga. 888, 485 S.E.2d 720 (1997).

When a defendant had been convicted of malice murder, felony murder, armed robbery, and other crimes, the trial court did not err by failing to merge the armed robbery counts into the felony murder count predicated on the underlying felony of armed robbery as the felony murder count was vacated by operation of O.C.G.A. § 16-1-7, and the defendant could be sentenced for the felony conviction so long as the felony was not included in the murder as a matter of fact or law; here, the armed robbery was not included in the malice murder charge as a matter of fact or law; evidence showing the defendant's intent to rob the victim was not used in proving the murder, and evidence that the defendant shot the victim was not used to prove the armed robbery. Davis v. State, 281 Ga. 871, 644 S.E.2d 113 (2007).

Felony prosecution not barred by prior plea of guilty to traffic offense.

- Defendant's entry of a plea of guilty to a traffic code violation did not bar prosecution for felony charges arising out of defendant's stop for the traffic violation, where it would have been unreasonable to impute the knowledge of one prosecuting officer to another, since two entirely separate prosecuting officers were involved and defense counsel had deliberately set out to exploit the situation by seeking expeditious disposition of the traffic violation. Powe v. State, 181 Ga. App. 429, 352 S.E.2d 783 (1986).

Defendant's payment of a fine for a seat belt violation without entering a plea was not a "former prosecution" that barred defendant's later prosecution for vehicular homicide and other charges arising out of the same conduct, since the fine was accepted in error and without the permission or knowledge of the prosecutor's office or the court. Brown v. State, 251 Ga. App. 569, 554 S.E.2d 760 (2001).

Subsequent prosecution on lesser included offense not barred.

- Trial court erred by dismissing the indictment against the defendant charging voluntary manslaughter because the acquittal on the greater offense of malice murder did not preclude a retrial on the lesser offense of voluntary manslaughter. State v. Williams, 322 Ga. App. 341, 744 S.E.2d 883 (2013).

Forfeiture proceedings not a bar to prosecution.

- Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22, 464 S.E.2d 19 (1995).

Civil forfeiture proceeding in a drug case was not a criminal prosecution for purposes of double jeopardy. Murphy v. State, 219 Ga. App. 474, 465 S.E.2d 497 (1995), aff'd, 267 Ga. 120, 475 S.E.2d 907 (1996).

Juvenile proceedings.

- After a juvenile pled guilty to various traffic offenses and paid the fines, such action barred proceedings on a petition seeking an adjudication of delinquency based on other charges related to the same automobile accident. In re J.B.W., 230 Ga. App. 673, 497 S.E.2d 1 (1998).

Because of the unique nature of juvenile court proceedings and the fact that a disposition or adjudication order is not a conviction of a crime, the doctrine of merger is inapplicable in juvenile proceedings. In the Interest of I. H., 350 Ga. App. 394, 829 S.E.2d 437 (2019).

Separate proceedings in separate jurisdictions.

- After a Georgia state patrolman began pursuing the defendant in one county after a radar check revealed that the defendant was speeding, the patrolman stated that the defendant's vehicle was observed "weaving" after the vehicle passed into the other county and that the patrolman detected a strong odor of alcohol on the defendant's breath upon stopping the defendant, and the patrolman issued two citations, one for speeding in one county and the other charging the defendant with driving under the influence of alcohol in the other county, a plea of guilty to the speeding charge in one county did not bar a Driving Under the Influence (DUI) prosecution in the other county. Morgan v. State, 195 Ga. App. 587, 394 S.E.2d 588 (1990).

Defendant's plea in bar and motion to dismiss the Fulton County charges was improperly denied as the defendant negotiated a plea deal in Clayton County; and the prosecution for false imprisonment in Fulton County was not distinct from those crimes to which the defendant pled in Clayton County because, by crossing the county line into Clayton County, a new crime was not committed against the victim, but was a continuation of a crime that had begun in Fulton County. Arnold v. State, 352 Ga. App. 777, 835 S.E.2d 759 (2019).

Subsequent prosecution not barred since prosecutor had no earlier knowledge.

- Denial of defendant's double jeopardy plea in bar was proper because the defendant did not affirmatively show the prosecutor actually knew of the other crimes when prosecuting the traffic offenses arising out of the same incident. Turner v. State, 238 Ga. App. 438, 518 S.E.2d 923 (1999).

When the facts relating to defendant's theft by taking and malfeasance in office convictions, allegedly arose from the same alleged conduct, but were not known to the state in a prior malpractice in office action and the new offenses involved proof of additional facts, the trial court properly denied the defendant's plea in bar of double jeopardy under O.C.G.A. §§ 16-1-7 and16-1-8. Atkinson v. State, 263 Ga. App. 274, 587 S.E.2d 332 (2003).

Because the defendant failed to affirmatively show that the prosecutor had any actual knowledge regarding the approximately $300,000 worth of jewelry items found in a toolbox located at the defendant's residence upon an eviction, which were the subject of a second theft prosecution involving jewelry the defendant had stolen, the second prosecution regarding those items was not barred on double jeopardy grounds. White v. State, 284 Ga. App. 805, 644 S.E.2d 903, cert. denied, No. S07C1243, 2007 Ga. LEXIS 564 (Ga. 2007).

As a prosecutor had no actual knowledge of a prior juvenile traffic citation that was resolved against the defendant, a juvenile, when the prosecutor initiated charges against the juvenile on delinquency traffic citations under O.C.G.A. § 15-11-73, the juvenile court properly denied the juvenile's motion to acquit and plea of double jeopardy under O.C.G.A. § 16-1-7(b). In re C. E. H., 297 Ga. App. 467, 677 S.E.2d 318 (2009).

Trial court did not err by denying the defendant's motion to dismiss on double jeopardy grounds because, before the first trial, the witness statements did not demand a finding, as a matter of law, that the prosecutor had actual knowledge that the defendant had committed the crimes of conspiring to distribute marijuana and distributing marijuana; and, with regard to the gang crime, there was evidence that the state knew only that the defendant had joined a gang years before, not that the defendant was currently involved in drug-related gang activity. Randolph v. State, 334 Ga. App. 475, 780 S.E.2d 19 (2015).

Trial court erred in dismissing the defendant's charge for DUI, O.C.G.A. § 40-6-391(k), on double jeopardy grounds under O.C.G.A. § 16-1-7(b) based on the prior disposal online of a separate seat belt citation; there was no showing that the solicitor had actual knowledge of the DUI charge at the time the seat belt charge was handled. State v. Garlepp, 338 Ga. App. 788, 790 S.E.2d 839 (2016).

Joinder and severance when offenses charged are based on same conduct.

- Severance is necessary, when same conduct affords basis of joinder, only in the interest of justice. This standard is quite similar to the American Bar Association standard of achieving "a fair determination of the defendant's guilt or innocence." Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979).

If multiple convictions arising out of single prosecution are barred, successive prosecution is also barred. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977); Perkins v. State, 143 Ga. App. 124, 237 S.E.2d 658 (1977); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).

Merger claims cannot be deemed waived.

- Merger claims cannot be waived, even following a guilty plea, because a conviction that merges as a matter of law or fact with another conviction is void, and any resulting sentence is void and illegal, which means that the claims may be challenged in any proper proceeding. Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013).

Former Code 1933, §§ 26-505 and 26-506 (see now O.C.G.A. §§ 16-1-6 and16-1-7) established alternative rules for determining when one crime was included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975); Williams v. State, 156 Ga. App. 481, 274 S.E.2d 826 (1980).

Several crimes arising from the same conduct and within the jurisdiction of a single court must be prosecuted in a single prosecution except where the court, in the interest of justice, orders one or more of the charges to be tried separately. Manning v. State, 162 Ga. App. 494, 292 S.E.2d 95 (1982).

Same conduct establishes more than one crime.

- While O.C.G.A. § 16-1-7(a) prohibits multiple convictions for the same conduct, it also provides that when the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. Lunsford v. State, 260 Ga. App. 818, 581 S.E.2d 638 (2003).

When prosecutions in different courts of same state viewed as acts of single sovereign.

- Prosecutions of same defendant in different courts of same state, one prosecution being for a felony and the other being for a misdemeanor which was included in the felony offense must be viewed as acts of a single sovereign under double jeopardy clause of Fifth Amendment. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).

Where recorder's court acted without jurisdiction.

- When recorder's court lacked jurisdiction to try a defendant for driving without insurance, a violation of former O.C.G.A. § 33-34-12(see now O.C.G.A. § 40-5-70 et seq.), neither O.C.G.A. § 16-1-7(b) nor O.C.G.A. § 16-1-8 precluded later prosecution in superior court for operating a motor vehicle after having been declared an habitual violator and for driving under the influence. Parker v. State, 170 Ga. App. 333, 317 S.E.2d 209 (1984).

When the proceeding in recorder's court was null and void because the court lacked jurisdiction to try appellant for a state law violation, the defendant's retrial was not a violation of double jeopardy or prior prosecution. Duncan v. State, 185 Ga. App. 854, 366 S.E.2d 154 (1988), overruled on other grounds, Kolker v. State, 193 Ga. App. 306, 387 S.E.2d 597 (1989).

Venue in more than one county.

- In a kidnapping and murder case, where venue over the murder charge could lie in either of two counties, but venue over the kidnapping was solely in one of the counties, O.C.G.A. § 16-1-7 did not require that prosecution of the "dual venue" criminal charge must occur in the one county where the other criminal charge arising out of the same multi-county crime spree was required to be prosecuted; even though the state sought to prosecute the defendant on the murder charge initially in the county that did not have venue of the kidnapping, there was no procedural bar to the state's prosecuting both charges in the county with venue of both so long as the county comported with the "single prosecution requirement." Griffin v. State, 266 Ga. 115, 464 S.E.2d 371 (1995).

When bond forfeiture declared final disposition.

- When a person is arrested for driving under the influence of alcohol, posts a cash bond, and fails to appear in court, and the judge enters an order forfeiting the bond, declaring the forfeiture to be a final disposition of the case, a subsequent arraignment and trial for driving under the influence of alcohol constitutes double jeopardy, and it is error to deny a plea in bar of trial. Wilson v. State, 167 Ga. App. 421, 306 S.E.2d 704 (1983).

No issue of fact as to whether one crime included in another.

- Court did not err in failing to instruct the jury to decide which one of the offenses charged in the indictment or of the lesser included offense to find defendant guilty of. There was no issue of fact as to whether one crime was included in another and the court was not required to charge on O.C.G.A. § 16-1-7. Leslie v. State, 211 Ga. App. 871, 440 S.E.2d 757 (1994).

Application to verdict.

- Since O.C.G.A. § 16-1-7(a) provides that one cannot be "convicted" of more than one crime arising from the same conduct, it has no application to the verdict. Sanders v. State, 212 Ga. App. 832, 442 S.E.2d 923 (1994).

Even though charges of aggravated sodomy and aggravated child molestation arose out of the same act, the jury could find defendant guilty of both offenses, and the trial court was not required to direct a verdict as to one of the offenses. Sartin v. State, 223 Ga. App. 759, 479 S.E.2d 354 (1996).

Trial court did not err in denying defendant's motion for a directed verdict on the basis that several counts alleged in the indictment merged because the same facts were used to prove them; although O.C.G.A. § 16-1-7 provides that one cannot be "convicted" of more than one crime arising from the same conduct, it has no application to the verdict. Williams v. State, 233 Ga. App. 217, 504 S.E.2d 53 (1998).

When first jury hung, additional charges may not be brought as penalty.

- When first trial results in a hung jury, the defendant is not to be penalized for the state's failure to obtain a conviction by the addition of new charges at the second trial. Curry v. State, 248 Ga. 183, 281 S.E.2d 604 (1981).

Trial following mistrial on a new indictment charging involuntary manslaughter in two separate counts was not barred simply because the original indictment charged defendant with the same crime in a single count. Casillas v. State, 267 Ga. 541, 480 S.E.2d 571 (1997).

Re-prosecution for lesser included crimes.

- If a defendant is tried and convicted of a crime, and that conviction is reversed due to insufficient evidence, procedural double jeopardy bars re-prosecution for that same crime and any lesser included crime. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).

Offenses should have been merged.

- Convictions of aggravated assault with intent to commit rape and aggravated assault with a deadly weapon by a husband who demanded sex from his estranged wife, stabbed his wife in the back when she refused, and then partially penetrated her, should have been merged prior to sentencing; therefore, the case was remanded. Lynn v. State, 251 Ga. App. 155, 553 S.E.2d 836 (2001).

Defendant's convictions for possession of a firearm during the commission of a crime (criminal attempt to commit kidnapping) and possession of a firearm during the commission of a crime (aggravated assault) should have been merged. Carpenter v. State, 343 Ga. App. 355, 808 S.E.2d 229 (2017), cert. denied, 2018 Ga. LEXIS 312 (Ga. 2018).

Parole and probation revocation proceedings.

- Permitting defendant to be prosecuted in successive actions for probation revocation based on violations that were part of the same conduct did not violate double jeopardy. Perry v. State, 213 Ga. App. 220, 444 S.E.2d 150 (1994).

Subsequent prosecution denied since prosecutor had earlier knowledge.

- At the time defendant pled guilty to reckless conduct, the prosecutor was aware facts in the arrest report clearly contained evidence of aggravated assault, therefore, knowledge of other crimes was imputed to the prosecutor and subsequent prosecution of defendant under aggravated assault indictments was barred by O.C.G.A. §§ 16-1-7 and16-1-8. Billups v. State, 228 Ga. App. 804, 493 S.E.2d 8 (1997).

Officer's single ambiguous comment to internal affairs describing the officer's sexual assault on woman in the officer's custody was insufficient as a matter of law to affirmatively demonstrate the prosecutor's actual knowledge prior to trial that an act of sodomy had occurred during the alleged assault on the complainant; therefore, the prosecutorial bar under O.C.G.A. § 16-1-7(b) did not apply. State v. Goble, 231 Ga. App. 697, 500 S.E.2d 35 (1998).

Subsequent prosecution not barred where municipal court lacked jurisdiction.

- Since the municipal court lacked jurisdiction to try defendant pursuant to a Uniform Traffic Citation charging him with "simple battery" in violation of "Section16-5-23", prosecution of the offense before such court was void; accordingly, trial of defendant for simple battery in the state court was not barred on the ground of double jeopardy or prior prosecution. Rangel v. State, 217 Ga. App. 152, 456 S.E.2d 739 (1995).

Indictment on charges previously nolle prossed.

- It was not a violation of O.C.G.A. §§ 16-1-7(b) and16-1-8(b) to indict the defendant on charges that had previously been nolle prossed under a plea agreement; the defendant breached the agreement by withdrawing a guilty plea to one charge, thereby allowing the state to indict the defendant on the charges that were previously nolle prossed. Thomas v. State, 285 Ga. App. 792, 648 S.E.2d 111, cert. denied, No. S07C1550, 2007 Ga. LEXIS 628 (Ga. 2007).

Trial court did not err by entering judgment on multiple counts.

- Because a conviction on a charge of aggravated assault could be based on the defendant's act of cutting of the victim's throat, while a conviction on a charge of aggravated battery could be based on the serious disfigurement of the victim's arms, the trial court did not err by entering judgment on both counts. Goss v. State, 289 Ga. App. 734, 658 S.E.2d 168 (2008).

Appellate review.

- Because one may not be legally convicted of a crime that is included as a matter of law or fact in another crime for which that person stands convicted, an appellate court must vacate the conviction and sentence for an included crime, even where the issue of merger was not raised in the trial court. Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003).

Cited in Rowland v. State, 124 Ga. App. 494, 184 S.E.2d 494 (1971); Ansley v. State, 124 Ga. App. 670, 185 S.E.2d 562 (1971); Ezzard v. State, 229 Ga. 465, 192 S.E.2d 374 (1972); Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972); Loftin v. State, 230 Ga. 92, 195 S.E.2d 402 (1973); Howard v. State, 128 Ga. App. 807, 198 S.E.2d 334 (1973); Brown v. State, 129 Ga. App. 743, 201 S.E.2d 14 (1973); Lingerfelt v. State, 231 Ga. 354, 201 S.E.2d 445 (1973); Estevez v. State, 130 Ga. App. 215, 202 S.E.2d 686 (1973); Bennett v. State, 130 Ga. App. 510, 203 S.E.2d 755 (1973); Ansley v. Stynchcombe, 480 F.2d 437 (5th Cir. 1973); Echols v. State, 231 Ga. 633, 203 S.E.2d 165 (1974); Burden v. State, 131 Ga. App. 522, 206 S.E.2d 533 (1974); Dyke v. State, 232 Ga. 817, 209 S.E.2d 166 (1974); Spence v. State, 233 Ga. 527, 212 S.E.2d 357 (1975); Owens v. State, 233 Ga. 905, 213 S.E.2d 860 (1975); Harshaw v. State, 134 Ga. App. 581, 215 S.E.2d 337 (1975); Summerour v. State, 135 Ga. App. 43, 217 S.E.2d 378 (1975); Lanthrip v. State, 235 Ga. 10, 218 S.E.2d 771 (1975); Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976); Hardin v. Hopper, 237 Ga. 139, 227 S.E.2d 43 (1976); Frazier v. State, 138 Ga. App. 640, 227 S.E.2d 284 (1976); Mena v. State, 138 Ga. App. 722, 227 S.E.2d 411 (1976); Thomas v. State, 237 Ga. 690, 229 S.E.2d 458 (1976); Jones v. State, 238 Ga. 51, 230 S.E.2d 865 (1976); Bonner v. State, 140 Ga. App. 314, 231 S.E.2d 120 (1976); Neel v. State, 140 Ga. App. 691, 231 S.E.2d 394 (1976); Williams v. State, 238 Ga. 298, 232 S.E.2d 535 (1977); Padgett v. State, 142 Ga. App. 139, 235 S.E.2d 545 (1977); Padgett v. State, 239 Ga. 556, 238 S.E.2d 92 (1977); Hawes v. State, 239 Ga. 630, 238 S.E.2d 418 (1977); Hiatt v. State, 144 Ga. App. 298, 240 S.E.2d 894 (1977); Corson v. State, 144 Ga. App. 559, 241 S.E.2d 454 (1978); Underwood v. State, 144 Ga. App. 684, 242 S.E.2d 339 (1978); State v. Bolton, 144 Ga. App. 797, 242 S.E.2d 378 (1978); Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978); Ramsey v. State, 145 Ga. App. 60, 243 S.E.2d 555 (1978); State v. Gilder, 145 Ga. App. 731, 245 S.E.2d 3 (1978); Coaxum v. State, 146 Ga. App. 370, 246 S.E.2d 403 (1978); State v. Gilder, 242 Ga. 285, 248 S.E.2d 659 (1978); Carnes v. State, 242 Ga. 286, 248 S.E.2d 660 (1978); Hizine v. State, 148 Ga. App. 375, 251 S.E.2d 393 (1978); Dowdy v. State, 148 Ga. App. 498, 251 S.E.2d 571 (1978); Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978); Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979); Boykin v. State, 149 Ga. App. 457, 254 S.E.2d 457 (1979); Benton v. State, 150 Ga. App. 647, 258 S.E.2d 298 (1979); Schamber v. State, 152 Ga. App. 196, 262 S.E.2d 533 (1979); Groves v. State, 152 Ga. App. 606, 263 S.E.2d 501 (1979); Duke v. State, 153 Ga. App. 204, 264 S.E.2d 721 (1980); Thomas v. State, 153 Ga. App. 229, 264 S.E.2d 734 (1980); Askea v. State, 153 Ga. App. 849, 267 S.E.2d 279 (1980); Park v. State, 154 Ga. App. 348, 268 S.E.2d 401 (1980); State v. Gilmer, 154 Ga. App. 673, 270 S.E.2d 25 (1980); State v. Everett, 155 Ga. App. 162, 270 S.E.2d 345 (1980); Trimble v. State, 156 Ga. App. 9, 274 S.E.2d 10 (1980); Bailey v. State, 157 Ga. App. 222, 276 S.E.2d 843 (1981); Bowens v. State, 157 Ga. App. 334, 277 S.E.2d 326 (1981); Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981); Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981); Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981); Jones v. State, 161 Ga. App. 620, 288 S.E.2d 795 (1982); Rentz v. State, 162 Ga. App. 357, 291 S.E.2d 434 (1982); Smith v. State, 163 Ga. App. 531, 295 S.E.2d 208 (1982); Westmoreland v. State, 164 Ga. App. 455, 297 S.E.2d 357 (1982); Harris v. State, 165 Ga. App. 249, 299 S.E.2d 924 (1983); Miller v. State, 165 Ga. App. 638, 302 S.E.2d 394 (1983); Mease v. State, 165 Ga. App. 746, 302 S.E.2d 429 (1983); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); In re T.E.D., 169 Ga. App. 401, 312 S.E.2d 864 (1984); Bert v. State, 169 Ga. App. 628, 314 S.E.2d 466 (1984); Felker v. State, 252 Ga. 351, 314 S.E.2d 621 (1984); Weaver v. State, 169 Ga. App. 890, 315 S.E.2d 467 (1984); Chitwood v. State, 170 Ga. App. 599, 317 S.E.2d 589 (1984); Bowens v. State, 171 Ga. App. 364, 320 S.E.2d 189 (1984); Strozier v. State, 171 Ga. App. 703, 320 S.E.2d 764 (1984); Caldwell v. State, 171 Ga. App. 680, 320 S.E.2d 888 (1984); Stone v. State, 253 Ga. 433, 321 S.E.2d 723 (1984); Pittman v. State, 172 Ga. App. 22, 320 S.E.2d 71 (1984); Welch v. State, 172 Ga. App. 476, 323 S.E.2d 622 (1984); Jordan v. State, 172 Ga. App. 496, 323 S.E.2d 657 (1984); Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984); State v. Martin, 173 Ga. App. 370, 326 S.E.2d 558 (1985); Ridgeway v. State, 174 Ga. App. 663, 330 S.E.2d 916 (1985); Colsson v. State, 177 Ga. App. 840, 341 S.E.2d 318 (1986); Clarington v. State, 178 Ga. App. 663, 344 S.E.2d 485 (1986); Few v. State, 179 Ga. App. 166, 345 S.E.2d 643 (1986); Catchings v. State, 256 Ga. 241, 347 S.E.2d 572 (1986); Gordon v. State, 181 Ga. App. 391, 352 S.E.2d 582 (1986); Matthews v. State, 181 Ga. App. 819, 354 S.E.2d 175 (1987); Hendrick v. State, 257 Ga. 514, 361 S.E.2d 169 (1987); Johnson v. State, 257 Ga. 731, 363 S.E.2d 540 (1988); Sparks v. State, 185 Ga. App. 225, 363 S.E.2d 631 (1987); Hanvey v. State, 186 Ga. App. 690, 368 S.E.2d 357 (1988); Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988); Armfield v. State, 259 Ga. 43, 376 S.E.2d 369 (1989); State v. Evans, 192 Ga. App. 216, 384 S.E.2d 404 (1989); State v. Smith, 193 Ga. App. 831, 389 S.E.2d 547 (1989); Neal v. State, 198 Ga. App. 13, 400 S.E.2d 375 (1990); Young v. State, 199 Ga. App. 520, 405 S.E.2d 338 (1991); Loden v. State, 199 Ga. App. 683, 406 S.E.2d 103 (1991); Timberlake v. State, 200 Ga. App. 64, 406 S.E.2d 537 (1991); Lewis v. State, 262 Ga. 679, 424 S.E.2d 626 (1993); Gentry v. State, 206 Ga. App. 490, 426 S.E.2d 52 (1992); Hill v. State, 207 Ga. App. 65, 426 S.E.2d 915 (1993); Moore v. State, 207 Ga. App. 673, 428 S.E.2d 678 (1993); Burtts v. State, 269 Ga. 402, 499 S.E.2d 326 (1998); Golden v. State, 233 Ga. App. 703, 505 S.E.2d 242 (1998); Holmes v. State, 272 Ga. 517, 529 S.E.2d 879 (2000); Allen v. State, 272 Ga. 513, 530 S.E.2d 186 (2000); Donaldson v. State, 244 Ga. App. 89, 534 S.E.2d 839 (2000); Beasley v. State, 244 Ga. App. 836, 536 S.E.2d 825 (2000); Gissendaner v. State, 272 Ga. 704, 532 S.E.2d 677 (2000); Stone v. State, 245 Ga. App. 728, 538 S.E.2d 791 (2000); Stowe v. State, 272 Ga. 866, 536 S.E.2d 506 (2000); Rhode v. State, 274 Ga. 377, 552 S.E.2d 855 (2001); Ruffin v. State, 252 Ga. App. 289, 556 S.E.2d 191 (2001); Henderson v. State, 252 Ga. App. 295, 556 S.E.2d 204 (2001); Tesfaye v. State, 275 Ga. 439, 569 S.E.2d 849 (2002); Curtis v. State, 275 Ga. 576, 571 S.E.2d 376 (2002); Glover v. State, 258 Ga. App. 527, 574 S.E.2d 565 (2002); Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004); Cole v. State, 282 Ga. App. 211, 638 S.E.2d 363 (2006); Sturgis v. State, 282 Ga. 88, 646 S.E.2d 233 (2007); Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886 (2007); Walker v. Hale, 283 Ga. 131, 657 S.E.2d 227 (2008); Bennett v. State, 292 Ga. App. 382, 665 S.E.2d 365 (2008); Armstrong v. State, 292 Ga. App. 145, 664 S.E.2d 242 (2008); Smith v. State, 284 Ga. 304, 667 S.E.2d 65 (2008); Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008); Henley v. State, 285 Ga. 500, 678 S.E.2d 884 (2009); Strickland v. State, 300 Ga. App. 898, 686 S.E.2d 486 (2009); State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014); Dyal v. State, 297 Ga. 184, 773 S.E.2d 249 (2015); Spears v. State, 296 Ga. 598, 769 S.E.2d 337 (2015), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018); Woods v. State, 342 Ga. App. 301, 802 S.E.2d 822 (2017); Patterson v. State, 347 Ga. App. 105, 817 S.E.2d 557 (2018); Vasquez v. State, 306 Ga. 216, 830 S.E.2d 143 (2019); Cordova v. State, 351 Ga. App. 652, 832 S.E.2d 465 (2019).

Included Crimes

1. In General

Applicability of test under double jeopardy clause of Fifth Amendment.

- When same act or transaction constitutes a violation of two distinct statutory provisions, test to be applied to determine whether there are two offenses or only one for purposes of double jeopardy clause of the Fifth Amendment is whether each provision requires proof of a fact which the other does not. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).

When crimes charged are same in law or fact.

- Former Code 1933, § 26-506(a) provided that although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Bailey v. State, 146 Ga. App. 774, 247 S.E.2d 588 (1978).

Although defendant may be prosecuted for all crimes committed, defendant may not be convicted of more than one crime if crimes charged are same in law or fact. Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980).

Required evidence test adopted.

- In determining when one crime is included in another under O.C.G.A. §§ 16-1-6(1) and16-1-7(a), the actual evidence test has been overruled and replaced with the Blockburger required evidence test, as this is consistent with the statutory framework of O.C.G.A. § 16-1-6(1), which speaks of required elements. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Multiple punishment is barred if crime is same as matter of fact or law as specified in criminal code. State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974), overruled on other grounds Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Transactions must be identical both as matter of fact and law. Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974).

O.C.G.A.

§ 16-1-6 construed. - Paragraph (1) of former Code 1933, § 26-505 set (see now O.C.G.A. § 16-1-6) out rules for determining included crimes as a matter of fact, while paragraph (2) sets out rules for determining included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Aggravating circumstances.

- Inclusion provisions of former Code 1933, §§ 26-505 and 26-506 (see now O.C.G.A. §§ 16-1-6 and16-1-7) did not apply to aggravating circumstances but to crimes. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781, overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Corollary of subsection (a) is that defendant cannot be convicted separately of both crimes.

- If defendant can be indicted and tried on one trial for two crimes arising from same conduct, but not convicted of more than one offense if one is lesser included in the other or they differ only in that one prohibits conduct generally and the other specifically, it follows that a defendant can be tried and convicted separately of either one or the other of the two crimes, but not both. State v. O'Neal, 156 Ga. App. 384, 274 S.E.2d 575 (1980).

Doctrine of merger is still law in this state. Burns v. State, 127 Ga. App. 828, 195 S.E.2d 189 (1973).

Merger not required when greater offense not charged.

- Evidence that the object of a conspiracy to traffic in cocaine is completed does not preclude prosecution for conspiracy to traffic in cocaine rather than the substantive offense of trafficking in cocaine. Stafford v. State, 187 Ga. App. 401, 370 S.E.2d 646 (1988).

Considering lesser offense upon finding guilt as to greater offense.

- Where offense of simple battery was properly charged as lesser included offense of aggravated assault under indictment and evidence and, as such, defendant could not have been convicted of both aggravated assault and simple battery, trial court was justified in instructing jury so as to prevent them from needlessly considering charge of simple battery if they found defendant guilty of aggravated assault. Harper v. State, 157 Ga. App. 480, 278 S.E.2d 28 (1981).

Request for charge on lesser included offense on retrial.

- Upon retrial for a murder charge which had been dismissed after mistrial, the state was not precluded from requesting a charge on the lesser included offense of voluntary manslaughter as was requested at the trial on the original indictment. Rhyne v. State, 209 Ga. App. 548, 434 S.E.2d 76 (1993), aff'd, 264 Ga. 176, 442 S.E.2d 742 (1994).

Effect of conviction of lesser crime on retrial after reversal of conviction of greater crime.

- When there is a conviction of two crimes in a single prosecution, one of which is included in the other and the defendant obtains reversal of major crime for lack of jurisdiction, remaining conviction of lesser crime does not bar retrial on major crime. In the event the defendant is then convicted on retrial for a major crime, invalidation of the defendant's conviction of a lesser included offenses for the same conduct would be authorized in appropriate proceedings. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).

2. Crimes Against the Person

Underlying felony is a lesser included offense of felony murder, and conviction of both offenses is proscribed under the provisions of former Code 1933, § 26-506(a)(1). Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975); Moss v. State, 262 Ga. 702, 425 S.E.2d 289, overruled on other grounds, Malcolm v. State, 263 Ga. 369, 434 S.E.2d 479 (1993).

As felony murder is defined under Georgia law, the underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Serious injury by vehicle and vehicular homicide did not merge.

- Five convictions for serious injury by vehicle and a conviction for vehicular homicide did not merge; although the convictions stemmed from one incident of driving under the influence, there were separate victims for each offense. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

Serious injury by vehicle prosecution barred as defendant pled guilty to failure to maintain lane.

- Under O.C.G.A. §§ 16-1-7(b) and16-1-8, double jeopardy protection barred the defendant's prosecution for, inter alia, serious injury by vehicle because the defendant had earlier pled guilty in magistrate's court to failure to maintain a lane arising out of the same accident; both charges could have been tried in the superior court, and it was apparent from the record that the prosecuting officer knew that the defendant had been charged with both offenses. When the defendant appeared in court initially, both charges were pending, and the magistrate court judge bound over the serious injury by vehicle charge. Etienne v. State, 298 Ga. App. 149, 679 S.E.2d 375 (2009).

Armed robbery as lesser included offense of felony murder. See Berryhill v. Ricketts, 242 Ga. 447, 249 S.E.2d 197 (1978).

When proof of the armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169, 304 S.E.2d 377 (1983); Allen v. State, 262 Ga. 649, 424 S.E.2d 1 (1993).

Armed robbery as included offense of malice murder.

- When the defendant is charged with an armed robbery of a murder victim, proof of the armed robbery is essential to support the defendant's conviction of malice murder and is an included offense. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).

Defendant's conviction for armed robbery was properly not merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as each offense required proof of an element that the other did not. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011).

Armed robbery and kidnapping are clearly not included offenses as a matter of law, nor are they included offenses as a matter of fact where the two offenses are based on separate acts. Emmett v. State, 199 Ga. App. 650, 405 S.E.2d 707 (1991), cert. denied, 199 Ga. App. 905, 405 S.E.2d 707 (1991).

Armed robbery and hijacking.

- Defendant's separate convictions for armed robbery and hijacking a motor vehicle did not violate the prohibitions against double jeopardy as O.C.G.A. § 16-5-44.1(d) provided that hijacking a motor vehicle was a separate offense and did not merge and it therefore superseded the state statutory double jeopardy provision; further, the Georgia Constitution did not prohibit additional punishment for a separate offense that the Georgia legislature had deemed to warrant a separate sanction; the defendant failed to show how the hijacking statute violated the federal double jeopardy clause. Mullins v. State, 280 Ga. App. 689, 634 S.E.2d 850 (2006).

Aggravated assault with a deadly weapon and intent to murder.

- Defendant's convictions for aggravated assault with a deadly weapon and aggravated assault with intent to murder merged for sentencing because both counts of the indictment alleged that the defendant committed aggravated assault by slashing the victim's neck; although one count alleged that the assault was done with a deadly weapon and the other alleged that it was done with the intent to commit murder, O.C.G.A. § 16-5-21(a)(1) and (a)(2), the counts were clearly based on a single act since the razor or knife used in that assault broke while it was pressed against the victim's neck and, thus, the counts merely charged the same act of aggravated assault being committed in two of the multiple ways set out in O.C.G.A. § 16-3-21. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).

Aggravated assault and burglary convictions properly kept separate from armed robbery.

- Trial court did not err by failing to merge for purposes of sentencing a defendant's aggravated assault and/or the burglary conviction with the armed robbery conviction since, with regard to the aggravated assault and armed robbery convictions, the evidence showed that the victim was first threatened with a gun in an attempt to rob, that, separately, the victim was pistol-whipped with a gun and struck with a hard object in an attempt to rob, and that finally, the victim was shot in an attempt to rob, thus, the trial court was authorized to conclude that the physical beating and either incident of gun use were separate completed crimes. Accordingly, the trial court was authorized to convict the defendant for aggravated assault for the physical beating and for armed robbery by use of a gun and, similarly, the burglary occurred when the defendant walked into the victim's home with intent to rob, which event was separated by time from the aggravated assault and armed robbery, therefore, all three crimes were separate completed crimes and merger was not required. Yates v. State, 298 Ga. App. 727, 681 S.E.2d 190 (2009).

Kidnapping, armed robbery, and aggravated assault.

- Trial court's decision not to merge the conviction of kidnapping, in violation of O.C.G.A. § 16-5-40, with defendant's convictions for aggravated assault and armed robbery, in violation of O.C.G.A. §§ 16-5-21 and16-8-41, was proper under O.C.G.A. § 16-1-7(a), as the facts that supported the kidnapping were not the same as those that supported the convictions for the other offenses; the kidnapping occurred when defendant forced three store employees into an office, the aggravated assaults occurred when defendant pointed a gun at one employee's head and hit another employee with it, and the armed robbery occurred when defendant took money from the store safe. Hill v. State, 279 Ga. App. 666, 632 S.E.2d 443 (2006).

Kidnapping, aggravated assault, and aggravated battery.

- Trial court did not err under O.C.G.A. § 16-1-7 in failing to merge convictions for aggravated assault and aggravated battery with a conviction for kidnapping with bodily injury as each crime required proof of at least one different element, and the state presented independent evidence to prove each individual crime as set out in the indictment. Evidence that the defendant pointed a gun at the victim and fired the gun at the floor near the victim, that the defendant used a wooden stick resembling a baseball bat to repeatedly hit the victim, and that the defendant hit and kicked the victim while the victim was tied up supported the three aggravated assault counts; aggravated battery in Counts 5 and 6 was established by evidence that the defendant broke the victim's nose, wrist, and shoulder and knocked out two teeth and by evidence that the defendant burned the victim's hand and caused the victim to be bitten by fire ants; and kidnapping with bodily injury was proven by evidence of injuries to the victim due to being bound by rope. Rouse v. State, 295 Ga. App. 61, 670 S.E.2d 869 (2008).

Aggravated battery and aggravated assault.

- Defendant's aggravated battery convictions did not merge because the counts of the indictment were predicated on different conduct; in order to prove one count of the indictment, the state had to show that the victim threw bleach in the victim's eyes, and in order to prove another count of the indictment, the state had to prove that the victim's finger was rendered useless because the finger was repeatedly struck with a hammer. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).

Separate judgments of conviction and sentences for aggravated assault, O.C.G.A. § 16-5-21(a)(2), and aggravated battery, O.C.G.A. § 16-5-24(a), were authorized because the evidence authorized a finding that the defendant committed an initial aggravated assault and, after a deliberate interval, committed an aggravated battery in a different location and on a different part of the victim's body; because each offense required proof of a fact that the other offense did not, the crimes did not merge legally or factually. Brockington v. State, 316 Ga. App. 90, 728 S.E.2d 753 (2012).

In an aggravated assault and aggravated battery case arising out of an incident in which the defendant twice, in quick succession, slashed the throat of the victim, the defendant's girlfriend, the trial court erred by failing to merge the defendant's convictions, and the court of appeals erroneously affirmed that decision because the record sufficiently established that the defendant's actions were part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent; and the offenses, which were based on the single criminal act of the defendant cutting the victim's throat with a knife, only differed with respect to the seriousness of the injury or risk of injury suffered by the victim. Regent v. State, 299 Ga. 172, 787 S.E.2d 217 (2016).

After the trial court merged the defendant's aggravated assault conviction into the defendant's armed robbery conviction, and then sentenced the defendant for armed robbery and aggravated battery, even if the trial court should have merged the defendant's aggravated battery and aggravated assault convictions, the end result would have been the same as the defendant would have been sentenced for aggravated battery rather than aggravated assault, given that the aggravated assault constituted the included offense; thus, any error by the trial court in failing to merge the defendant's aggravated battery and aggravated assault convictions was harmless and provided no basis for vacating the defendant's sentence. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).

Because the aggravated assault charge was based on the single criminal act of the defendant throwing acid on the victim, and differed from the aggravated battery counts only with respect to the specificity of the injury or risk of injury the victim actually suffered, the aggravated assault was included in the aggravated battery and should have merged. Fordham v. State, 352 Ga. App. 520, 835 S.E.2d 360 (2019).

Aggravated battery counts merged.

- As to the two counts of aggravated battery, both counts were accomplished by the single act of throwing acid on the victim and, therefore, one count should have merged into the other. Fordham v. State, 352 Ga. App. 520, 835 S.E.2d 360 (2019).

Aggravated battery and felony murder.

- After the trial court imposed a life sentence for felony murder predicated on aggravated battery and in addition imposed a 20-year concurrent term for the same aggravated battery, because the aggravated battery merged into the felony murder predicate, the trial court erred in sentencing the defendant on the aggravated battery. Smith v. State, 297 Ga. 667, 777 S.E.2d 453 (2015).

Murder is not included within crime of possession of firearm during commission of felony. Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442, cert. denied, 459 U.S. 1092, 103 S. Ct. 580, 74 L. Ed. 2d 940 (1982).

Defendant's conviction for possession of a knife during the commission of a felony did not merge into the defendant's two convictions for malice murder for sentencing purposes. Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010).

Theft of numerous articles in one robbery.

- After the defendant hailed a taxi, pulled a knife and took the driver's money, placed the driver in the trunk of the taxi, drove the taxi for a short period of time, and stopped the taxi and took the driver's cell phone and wallet after hearing the driver talking, the defendant was guilty of robbery; however, the defendant could not be convicted of multiple robberies. Lewis v. State, 261 Ga. App. 273, 582 S.E.2d 222 (2003).

False imprisonment does not merge with armed robbery.

- Offense of false imprisonment requires proof of at least one additional fact which the offense of armed robbery does not. Consequently, under the "required evidence" test, a defendant's false imprisonment conviction did not merge into the defendant's armed robbery conviction. Simpson v. State, 293 Ga. App. 760, 668 S.E.2d 451 (2008).

Sequential assaults held to be two offenses, the first a completed crime when the second was perpetrated. Talley v. State, 164 Ga. App. 150, 296 S.E.2d 173 (1982), aff'd, 251 Ga. 42, 302 S.E.2d 355 (1983).

Aggravated assault with deadly weapon and with object.

- Defendant's convictions for aggravated assault with a deadly weapon and aggravated assault with an object, device, or instrument did not merge because the counts of the indictment requiring the state to prove that the defendant slashed the victim's neck with a sharp-edged instrument, hit the victim with a hammer and wrapped a cord around the victim's neck with the intent to murder were based on different conduct and merger of those convictions was not required. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).

Aggravated assault upon one person and malice murder of another not "included."

- Aggravated assault alleged in one count of indictment to have been committed on one person and malice murder alleged in another count of same indictment to have been committed upon another person are not included within meaning of O.C.G.A. § 16-1-7(a)(2). Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981).

Aggravated assault and malice murder.

- When the evidence used to prove that the defendant perpetrated the aggravated assault of the decedent - that the defendant fired a deadly weapon and wounded the victim - was used to establish that the defendant had committed malice murder, convictions for both aggravated assault and murder violated double jeopardy. Montes v. State, 262 Ga. 473, 421 S.E.2d 710 (1992).

When a prisoner was convicted of malice murder under O.C.G.A. § 16-5-1(a), a jury did not return a verdict on felony murder counts because O.C.G.A. § 16-1-7 prohibited a conviction for both offenses for the death of a single victim. Further, the defendant's crime of aggravated assault under O.C.G.A. § 16-5-21(a) also merged with the malice murder offense as it was a crime included within the greater offense. Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008), cert. denied, 555 U.S. 1183, 129 S. Ct. 1336, 173 L. Ed. 2d 607 (2009).

Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790, 671 S.E.2d 815 (2009).

Codefendant's conviction for aggravated assault had to be vacated because it merged as a matter of fact into the conviction for malice murder since the medical examiner who performed the autopsy of the victim testified that the cause of death was "gunshot wounds," did not identify any injury as the fatal shot, acknowledged the examiner could not testify as to the order in which the bullets entered the victim's body, and stated no single wound would have instantly stopped the victim; in the absence of evidence that one wound was fatal and was preceded by a "deliberate interval" in the series of shots fired and by the infliction of non-fatal wounds, there was no evidence to support the infliction of an aggravated assault separate and apart from the malice murder. Coleman v. State, 286 Ga. 291, 687 S.E.2d 427 (2009).

Trial court erred in sentencing the defendant on the count of the indictment charging the defendant with making an assault upon the victim with intent to murder in violation of O.C.G.A. § 16-5-21(a) after sentencing the defendant to life in prison for malice murder because the aggravated assault upon the victim and the murder of the victim occurred simultaneously; thus, the evidence used to prove the aggravated assault offense was established by the same, but not all, of the facts required to prove malice murder. Gresham v. State, 289 Ga. 103, 709 S.E.2d 780 (2011).

Defendant's conviction for aggravated assault should have been merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as the aggravated assault, as pled, did not require proof of a fact not required to have been proved in the malice murder. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011).

Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012).

Trial court erred when the court failed to merge the defendant's aggravated assault conviction into the defendant's conviction for felony murder because there was no evidence of a deliberate interval separating the infliction of any non-fatal wounds and any fatal wounds; instead, the undisputed evidence was that the wounds were delivered in quick succession. Sears v. State, 292 Ga. 64, 734 S.E.2d 345 (2012).

Malice murder and cruelty to children.

- Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and16-5-70(b), the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, § 16-5-1(a), and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, § 16-5-70(b). Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010).

Aggravated assault and felony murder.

- It was permissible for the state to indict defendant for both aggravated assault and felony murder, although defendant could not be convicted of both because the aggravated assault was an included offense in the felony murder. Campbell v. State, 269 Ga. 186, 496 S.E.2d 724 (1998).

Trial court erred in sentencing defendant on an aggravated assault conviction; as the aggravated assault was the underlying felony that formed the basis for a felony murder charge against defendant under O.C.G.A. § 16-1-7, defendant could not be sentenced on both the aggravated assault and felony murder when found guilty of both. Bolston v. State, 282 Ga. 400, 651 S.E.2d 19 (2007).

Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the defendant's felony murder conviction, it should have merged for sentencing purposes; however, the conviction for aggravated assault with intent to rob, O.C.G.A. § 16-5-21(a)(1), did not merge into the felony murder conviction because the felony murder charge required proof that the defendant caused the victim's death and used a deadly weapon, O.C.G.A. §§ 16-5-1(c) and16-5-21(a)(2). Norris v. State, 302 Ga. 802, 809 S.E.2d 752 (2018).

Misdemeanor-manslaughter and felony murder.

- Since a misdemeanor can be an included crime in a felony, misdemeanor-manslaughter could be an included crime in felony murder. Carter v. State, 269 Ga. 420, 499 S.E.2d 63 (1998).

Voluntary manslaughter and felony murder.

- Because there is only one victim, to convict and sentence defendant for both voluntary manslaughter and felony murder would improperly subject defendant to multiple convictions and punishments for one crime. Smith v. State, 272 Ga. 874, 536 S.E.2d 514 (2000).

Aggravated assault with deadly weapon and aggravated assault with intent to murder.

- Since the facts adduced to prove the offense of aggravated assault with intent to murder were the same facts used to prove the offense of aggravated assault with a deadly weapon, as a matter of fact the latter had to be considered an offense included in the former. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 371 S.E.2d 432 (1988).

Aggravated assault conviction merged into a criminal attempt to commit murder conviction, where both counts were based on allegations that defendant had stabbed the victim with a knife. Kelley v. State, 201 Ga. App. 343, 411 S.E.2d 276 (1991).

Aggravated assault with deadly weapon and aggravated assault with intent to rob.

- Under O.C.G.A. § 16-1-7(a), a trial court erred in convicting and sentencing defendant for both aggravated assault with a deadly weapon and aggravated assault with the intent to rob, as those two offenses merged since the same facts were used to prove both offenses. Adcock v. State, 279 Ga. App. 473, 631 S.E.2d 494 (2006).

Voluntary manslaughter and aggravated assault.

- Convictions for the voluntary manslaughter of one victim and the aggravated assault of another did not merge as a matter of fact because only one shot was fired, striking both victims. Hall v. State, 235 Ga. App. 44, 508 S.E.2d 703 (1998).

Trial court erred in entering a judgment of conviction against the defendant for aggravated assault, O.C.G.A. § 16-5-21(a)(2), because that conviction should have been merged into the defendant's conviction for voluntary manslaughter, O.C.G.A. § 16-5-2(a); the defendant was charged in the indictment with voluntary manslaughter and aggravated assault for the stabbing of the victim, and the undisputed evidence at trial showed that the victim was stabbed one time in the chest, causing the victim's death. Muckle v. State, 307 Ga. App. 634, 705 S.E.2d 721 (2011).

Aggravated assault and armed robbery.

- Armed robbery and aggravated assault with a deadly weapon are separate crimes, and one is not included in the other. Neither prohibits a designated kind of conduct generally while the other prohibits a specific instance of such conduct. Roberts v. State, 228 Ga. 298, 185 S.E.2d 385 (1971).

Aggravated assault is not an included offense of armed robbery as defined by former Code 1933, § 26-506(a)(1), prohibiting multiple prosecutions for the same conduct. Harvey v. State, 233 Ga. 41, 209 S.E.2d 587 (1974) (see O.C.G.A. § 16-1-7(a)(1)).

Separate convictions for armed robbery and aggravated assault, although arising from same conduct, are not prohibited except where one crime is included in the other or where crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct. Kramer v. Hopper, 234 Ga. 395, 216 S.E.2d 119 (1975).

There was no violation of defendant's protection from double jeopardy in defendant having been convicted of and punished for both the aggravated assault and armed robbery of the victim, where the indictment charged armed robbery with the specific intent to commit a theft and the two acts were in fact separate though in close succession. Taylor v. State, 177 Ga. App. 624, 340 S.E.2d 263 (1986).

Entry of separate convictions for armed robbery and aggravated assault was barred, and conviction for the latter offense would have to be vacated, where the only aggravated assault shown by the evidence was that by which the commission of the armed robbery was effectuated. Young v. State, 177 Ga. App. 756, 341 S.E.2d 286 (1986).

Defendant's five convictions of aggravated assault merged with defendant's conviction on five counts of attempted armed robbery where defendant's act of pointing a pistol at bank employees when defendant announced intent to rob the bank was the act underlying both the convictions for attempted armed robbery and for aggravated assault. Hambrick v. State, 256 Ga. 148, 344 S.E.2d 639 (1986).

Aggravated assault was included in armed robbery as matter of fact, where the defendant initially pointed a pistol at the victim, which prompted the victim to open the cash drawer, and subsequently cocked the weapon after the victim told defendant that there was no money and fired virtually at the same moment as the victim was hitting the button to open the drawer. Moreland v. State, 183 Ga. App. 113, 358 S.E.2d 276 (1987).

Convictions and sentences for both armed robbery and aggravated assault were proper, where each offense charged was clearly supported by its own set of facts. Millines v. State, 188 Ga. App. 655, 373 S.E.2d 838 (1988).

Offenses of aggravated assault and robbery did not merge as a matter of law where, although the occurrences happened within a short span of time, the robbery had been completed at the time defendant fired the gun, and involved different actions and intents. Phelps v. State, 194 Ga. App. 493, 390 S.E.2d 899 (1990).

When the defendant's act of pointing a gun at one victim was the act underlying the armed robbery of a second victim, and the robbery was completed before the defendant committed an aggravated assault upon the second victim by pointing a gun at the victim, the crimes of armed robbery and aggravated assault upon the second victim did not merge. Perkins v. State, 216 Ga. App. 118, 453 S.E.2d 135 (1995).

Conviction for aggravated assault should have been vacated pursuant to the doctrine of merger. The only aggravated assault shown by the evidence was that by which the commission of armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it followed that the evidentiary basis for the aggravated assault conviction was "used up" in proving the armed robbery. Kelly v. State, 188 Ga. App. 362, 373 S.E.2d 63 (1988); Smith v. State, 193 Ga. App. 208, 387 S.E.2d 419 (1989); Jordan v. State, 218 Ga. App. 679, 462 S.E.2d 801 (1995).

Defendant's ineffective assistance of counsel claim based on counsel's failure to ask at sentencing that defendant's convictions for aggravated assault be merged into the armed robbery convictions was rejected as the convictions were merged at the motion for a new trial hearing. Buchanan v. State, 273 Ga. App. 174, 614 S.E.2d 786 (2005).

Since the defendant was indicted for aggravated assault for pointing a handgun at a victim, which was also a substantial step toward commission of the armed robbery, the trial court properly merged the defendant's aggravated assault conviction with the attempted armed robbery conviction. McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).

As the armed robberies and aggravated assaults with which the defendant was charged were committed against different victims, the crimes did not merge as a matter of law or fact. Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009).

Because the assault element of a defendant's aggravated assault with intent to rob conviction under O.C.G.A. § 16-5-21(a) was contained within the "use of an offensive weapon" element of armed robbery under O.C.G.A. § 16-8-41, and both crimes shared the "intent to rob" element, the defendant's aggravated assault conviction merged into the armed robbery conviction. Lucky v. State, 286 Ga. 478, 689 S.E.2d 825 (2010).

Defendant's sentence for armed robbery, O.C.G.A. § 16-8-41(a), and aggravated assault, O.C.G.A. § 16-5-21(a)(2), was not void as a result of the trial court's failure to merge the convictions because the convictions did not merge for sentencing purposes since the convictions did not involve the same conduct; the crime of armed robbery was complete when the defendant entered a restaurant and, with the use of a handgun, demanded and took money from a waitress, and, after completion of the armed robbery, the defendant pushed the gun against the waitress's neck and asked whether the waitress wanted to die, which formed the basis of the aggravated assault conviction. McKenzie v. State, 302 Ga. App. 538, 691 S.E.2d 352 (2010).

Trial court erred in failing to merge aggravated assault, O.C.G.A. § 16-5-21(a)(2), and armed robbery, O.C.G.A. § 16-8-41, counts because the state relied on the same act of assault to establish defendant's guilt of aggravated assault and armed robbery, and although the state could have been able to indict the defendant for aggravated assault based on conduct separate and distinct from the defendant's act of hitting the victim in the head with a baseball bat, the indictment specifically charged the defendant with the offense of aggravated assault; while armed robbery requires proof of additional facts, like aggravated assault with intent to rob, aggravated assault under § 16-5-21(a)(2) does not require proof of a fact not required to establish armed robbery. Taylor v. State, 304 Ga. App. 395, 696 S.E.2d 686 (2010).

Because defendant's conviction under O.C.G.A. § 16-8-41(a) for armed robbery could be sustained based upon defendant's conduct with a shotgun, and because defendant's conviction under O.C.G.A. § 16-5-21(a)(2) for aggravated assault could be sustained based upon defendant's conduct with a knife, pursuant to O.C.G.A. § 16-1-7(a), the two convictions did not merge. Johnson v. State, 305 Ga. App. 838, 700 S.E.2d 726 (2010).

Defendant's aggravated assault conviction should have merged into defendant's armed robbery conviction for sentencing purposes because the defendant's use of the defendant's handgun against the victim was the same conduct in both offenses, designed to immobilize the victim while the victim was robbed. The aggravated assault was established by proof of the same or less than all the facts required to establish the commission of the armed robbery. Herrera v. State, 306 Ga. App. 432, 702 S.E.2d 731 (2010).

Defendant's convictions for armed robbery and aggravated assault did not merge because each crime required proof of conduct that the other did not; the armed robbery as charged in the indictment required proof of intent to rob and that the victim's wallet was taken, while the aggravated assaults required proof that the victim's neck was slashed with a sharp weapon. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).

Trial court erred in failing to merge the defendant's conviction for aggravated assault with a deadly weapon, O.C.G.A. § 16-5-21(a)(2), into the defendant's conviction for armed robbery conviction, O.C.G.A. § 16-8-41(a), because the act of using an offensive weapon for the purposes of committing an armed robbery was the legal equivalent of assault for the purposes of committing an aggravated assault; it is not determinative under the merger analysis that the desired object of a defendant's armed robbery was something other than that which he or she actually took, but instead, what dictates merger is the fact that both crimes for which the defendant was convicted were predicated upon the same conduct. Hall v. State, 313 Ga. App. 66, 720 S.E.2d 181 (2011).

Because the victim was still being pistol whipped while the men asked the victim what the victim had and took the victim's wallet and cell phone, the robbery by use of a handgun was completed at the same place and approximately the same time as the aggravated assault with a handgun; thus, the timing of the offenses of armed robbery and aggravated assault with intent to rob did not preclude their merger. Curtis v. State, 330 Ga. App. 839, 769 S.E.2d 580 (2015).

Because the "assault" element of aggravated assault with intent to rob is contained within the "use of an offensive weapon" element of armed robbery and both crimes share the "intent to rob" element, there is no element of aggravated assault with intent to rob that is not contained in armed robbery, and the offenses merge. Curtis v. State, 330 Ga. App. 839, 769 S.E.2d 580 (2015).

Trial court erred in failing to merge the defendant's convictions for attempted armed robbery and aggravated assault because the aggravated assault charge did not require proof of any fact that was not also required to prove the attempted armed robbery as that offense could have been proved under the indictment in the current case; and the conduct involved in the attempted armed robbery count and aggravated assault count arose out of the same act or transaction as both counts alleged that the defendant pointed the gun at the victim, and the victim indicated that the gun was directed at the victim one time. Wilson v. State, 344 Ga. App. 285, 810 S.E.2d 303 (2018).

Aggravated assault, armed robbery and felony murder as separate crimes.

- When one person was the victim of aggravated assault, and another victim was killed, and both crimes occurred during an armed robbery, separate crimes of aggravated assault, armed robbery, and felony murder were committed. Foster v. State, 230 Ga. 666, 198 S.E.2d 847 (1973).

Aggravated assault and robbery.

- Aggravated assault conviction merged with robbery conviction where victim was placed in fear of receiving bodily injury before the victim's money was taken. Luke v. State, 171 Ga. App. 201, 318 S.E.2d 833 (1984).

Aggravated assault and aggravated battery.

- Facts adduced to support the aggravated assault charge were the same facts used to support the aggravated battery charge as the crimes were set forth in the indictment with the additional element being the victim's loss of use of the victim's eyes. Because the defendant could not be convicted for both crimes, the conviction for the included offense, the assault, was vacated. Mills v. State, 187 Ga. App. 79, 369 S.E.2d 283 (1988).

When the defendant shot the victim twice when the victim first turned to see the defendant, then struggled with the victim and knocked the victim down, and the defendant stood over the victim and shot the victim in the neck, the trial court did not commit error when the court convicted and sentenced the defendant for both offenses since the prosecution could well have proved any aggravated battery without introducing any evidence of the first two shots. White v. Hardegree, 190 Ga. App. 275, 378 S.E.2d 877, cert. denied, 190 Ga. App. 899, 378 S.E.2d 877 (1989).

Trial court erred in failing to merge defendant's aggravated assault with the aggravated battery conviction inasmuch as the same facts were used to support the indictments on both offenses. Davis v. State, 209 Ga. App. 187, 433 S.E.2d 366 (1993); Riden v. State, 226 Ga. App. 245, 486 S.E.2d 198 (1997).

When the evidence does not demonstrate that the aggravated assault and the aggravated battery were based on the "same conduct" within the contemplation of O.C.G.A. § 16-1-7, the separate convictions for these offenses may stand. Knight v. State, 190 Ga. App. 87, 378 S.E.2d 373 (1989); Malone v. State, 226 Ga. App. 185, 486 S.E.2d 57 (1997); Wright v. State, 243 Ga. App. 167, 532 S.E.2d 724 (2000).

Although the evidence that defendant intentionally stabbed a man in the side with a knife, causing a wound that required 100 stitches and that left a scar, was sufficient to support convictions for both aggravated assault under O.C.G.A. § 16-5-21(a)(2) and aggravated battery under O.C.G.A. § 16-5-24(a), the defendant could not be convicted of both crimes as that conviction was prohibited by O.C.G.A. § 16-1-7(a)(1) since the aggravated assault was included in the aggravated battery and arose out of the same conduct; thus, the aggravated assault conviction was vacated. Townsend v. State, 256 Ga. App. 837, 570 S.E.2d 47 (2002).

Defendant's aggravated assault and aggravated battery convictions under O.C.G.A. §§ 16-5-21(a) and16-5-24(a) did not merge under O.C.G.A. § 16-1-7(a), although both stemmed from the same act. The aggravated assault charge required proof that the defendant attempted to commit a violent injury with the intent to murder using a deadly weapon, while the aggravated battery charge required proof that the defendant maliciously caused bodily harm to the victim by rendering a member of the victim's body useless; thus, the offenses were distinct with each requiring proof of a fact which the other did not. Robbins v. State, 293 Ga. App. 584, 667 S.E.2d 684 (2008).

Actions of defendant and the codefendant in beating the victim, in breaking the victim's wrist and shoulder, and in causing burns to the victim's hands, although occurring sequentially, constituted separate offenses, as each was established by proof of different facts. Thus, the evidence did not demonstrate that the aggravated assault and the aggravated battery were based on the same conduct within the contemplation of O.C.G.A. § 16-1-7. Wilkinson v. State, 298 Ga. App. 190, 679 S.E.2d 766 (2009).

Trial court did not err in refusing to merge the defendant's convictions for aggravated assault and aggravated battery, O.C.G.A. §§ 16-5-21 and16-5-24, because the offenses were established by proving different facts; the defendant was found guilty of aggravated assault because there was evidence that the defendant assaulted the victim with a screwdriver, and the defendant was found guilty of aggravated battery because the victim's left lung was nonfunctional for a period of time due to the stab wound. Works v. State, 301 Ga. App. 108, 686 S.E.2d 863 (2009), cert. denied, No. S10C0458, 2010 Ga. LEXIS 251 (Ga. 2010).

Defendant waived the issue of whether the defendant's convictions for aggravated assault and aggravated battery in slitting the defendant's girlfriend's throat merged by pleading guilty to both offenses; moreover, the offenses did not merge because the assault charge accused the defendant of seriously injuring the victim and the battery charge accused the defendant of disfiguring her. Regent v. State, 306 Ga. App. 616, 703 S.E.2d 81 (2010).

Defendant's aggravated battery and aggravated assault convictions merged because the counts of the indictment were based on the same conduct of hitting the victim with a hammer, resulting in serious bodily injury to the victim's hand, and one of the victim's fingers being rendered useless when the victim placed the victim's hands up in an attempt to protect the victim's head; the aggravated assault was a lesser included offense of the aggravated battery because the aggravated assault required proof of a less serious injury than the aggravated battery. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).

Aggravated assault and family violence battery.

- Aggravated assault under O.C.G.A. § 16-5-21 with fists only and family violence battery under O.C.G.A. § 16-5-23.1(f) with fists and a bottle upon the defendant's then live-in girlfriend were not required to be merged under O.C.G.A. § 16-1-7(a) because there were two separate incidents separated by the girlfriend's visit to a store and because the aggravated assault did not require the use of a bottle. Collins v. State, 277 Ga. App. 381, 626 S.E.2d 513 (2006).

Aggravated assault and mutiny.

- When the facts adduced to support an aggravated assault charge were the same facts used to support a mutiny charge, as the crimes were set forth in the indictment, then the aggravated assault charge had to be considered an offense included within the mutiny charge; because O.C.G.A. § 16-1-7 forbids conviction for both crimes, the conviction for the included offense, aggravated assault, was vacated. Green v. State, 170 Ga. App. 594, 317 S.E.2d 609 (1984).

Crimes of aggravated assault on an officer and obstruction of the same officer were included in each other and defendant could only be convicted of one; the same conduct that proved the aggravated assault proved the obstruction. Priester v. State, 249 Ga. App. 594, 549 S.E.2d 429 (2001).

Trial court erred in failing to merge the defendant's convictions for four counts of obstruction of a police officer into the convictions for four counts of aggravated assault on a police officer because each count of the crime of obstruction was established by proof of the same or less than all the facts required to establish each count of the crime of aggravated assault; the state conceded that the trial court erred in failing to merge the convictions for obstruction into the convictions for aggravated assault on a police officer. Dobbs v. State, 302 Ga. App. 628, 691 S.E.2d 387 (2010).

Aggravated battery and robbery.

- Defendant could not be sentenced on conviction for aggravated battery since that crime merged with defendant's conviction for robbery where the aggravated battery conviction was based on the identical acts of violence through which the defendant effected the taking of the victim's purse. Kinney v. State, 234 Ga. App. 5, 505 S.E.2d 553 (1998).

Trial court did not err in failing to merge the defendant's aggravated battery conviction into the defendant's armed robbery conviction because the taking of the victim's property was not a fact required to establish the aggravated battery offense, and depriving the victim of a member of the victim's body was not a fact required to establish the armed robbery offense; and, while the aggravated battery and armed robbery were based on the same criminal transaction, aggravated battery and armed robbery did not simply prohibit different degrees of injury or risk of injury; rather, the two crimes prohibited entirely different categories of injury - depriving the victim of a member of the victim's body versus depriving the victim of property. Epperson v. State, 340 Ga. App. 25, 796 S.E.2d 1 (2016).

Aggravated battery conviction not bar to rape and robbery charges.

- Since defendant's act constituting aggravated battery was also used to prove the element of force essential to charges of rape and robbery, but there was evidence indicating use of force independent of the battery, O.C.G.A. § 16-1-7 did not bar prosecution on all three offenses. McCulligh v. State, 169 Ga. App. 717, 314 S.E.2d 724 (1984).

Simple battery and rape.

- When the same impermissible touching - hitting and slapping which constituted simple battery - also supplied the element of force necessary for conviction of rape, the battery merged into rape, thereby requiring reversal of appellant's simple battery conviction. Johnson v. State, 195 Ga. App. 723, 394 S.E.2d 586 (1990).

Simple battery and DUI.

- Simple battery charge did not "arise from the same conduct" as a driving under the influence (DUI) charge, so as to come within the prohibition of the multiple prosecution bar, where the battery occurred 40 minutes after defendant's arrest for DUI and at a different location, the officer who made the DUI arrest was not the same person allegedly struck by defendant, and the DUI involved defendant's operation of a motor vehicle, but the battery did not. State v. Littler, 201 Ga. App. 527, 411 S.E.2d 522 (1991).

Rape and assault with intent to rape.

- Offense of rape includes the lesser offense of assault with intent to rape. Padgett v. State, 205 Ga. App. 576, 423 S.E.2d 411 (1992).

Simple assault did not merge with aggravated assault with intent to rape.

- There was no merger of offenses as a result of defendant's conviction of simple assault and aggravated assault with the intent to rape, where there was sufficient evidence of two separate assaults, the simple assault having been a sequential reaction to the victim's resistance to the charged sexual assault. Watson v. State, 178 Ga. App. 778, 344 S.E.2d 667 (1986).

Simple assault did not merge with battery.

- Trial court did not err in failing to merge the defendant's convictions for simple assault and battery because the convictions were based upon different conduct as the first cut to the victim's forehead caused reasonable apprehension of immediate violent injury supporting the simple assault conviction, and the victim's remaining injuries caused by the knife wounds that followed supported a finding of visible bodily harm to support the battery conviction and each crime required proof of a fact that the other did not. Watts v. State, 321 Ga. App. 289, 739 S.E.2d 129 (2013).

Merger of rape and incest.

- Contrary to the defendant's argument, the trial court did not err in failing to merge a conviction for incest, O.C.G.A. § 16-6-22, in one count into a conviction for rape, O.C.G.A. § 16-6-1, in another count, despite the fact that both counts were based on the same act of sexual intercourse because the defendant's conduct established the commission of more than one crime; to establish the crime of rape, the state proved that the defendant had carnal knowledge of the victim, forcibly and against the victim's will, but to establish incest, it was also necessary to prove that the victim had a certain relation to the defendant. Thus, incest was not established by proof of the same or less than all the facts required to establish proof of rape. Dew v. State, 292 Ga. App. 631, 665 S.E.2d 715 (2008).

Defendant's rape and incest convictions did not merge because each crime required proof of an additional fact that the other did not because, to establish the crime of rape, the state had to prove that the defendant lacked consent, which was not an element of incest; and, to establish the crime of incest, the state had to prove that the victim was of a certain relation to the defendant, which was not an element of rape; thus, the trial court did not err in sentencing the defendant for both rape and incest. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).

Molestation.

- State did not err when it charged defendant with four counts of molestation arising out of the same transaction where the indictment alleged four separate immoral or indecent acts committed by defendant with the intent to arouse or satisfy defendant's own sexual desires; while O.C.G.A. § 16-1-7(a) prohibited multiple convictions for the same conduct, it also provided that when the same conduct of an accused could establish the commission of more than one crime, the accused could be prosecuted for each crime. Lunsford v. State, 260 Ga. App. 818, 581 S.E.2d 638 (2003).

False imprisonment as lesser included offense of kidnapping.

- After the defendant had been convicted of kidnapping with bodily injury, subsequent charges of false imprisonment, arising out of the same set of facts, were barred by former jeopardy under the "required evidence test" because false imprisonment was a lesser included offense of kidnapping with bodily injury. Sallie v. State, 216 Ga. App. 502, 455 S.E.2d 315 (1995).

Rape and kidnapping with bodily injury as included offenses.

- When rape was a separate crime arising out of the same transaction under former Code 1933, § 26-506(a), evidence of such rape could not be used as a basis for separate convictions of both rape and kidnapping with bodily injury to the victim. Allen v. State, 233 Ga. 200, 210 S.E.2d 680 (1974), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

In a criminal trial, the offenses of kidnapping with bodily harm and rape were not merged where, under the facts, neither offense was included in the other as a matter of fact nor as a matter of law. Turner v. State, 194 Ga. App. 878, 392 S.E.2d 256 (1990).

Rape and kidnapping with bodily injury.

- Double jeopardy attached where the state sought to prosecute defendant for rape and sodomy in one county based upon the same facts and upon the same actual evidence which was used to convict defendant for kidnapping with bodily injury in another county. State v. Sallie, 206 Ga. App. 732, 427 S.E.2d 11 (1992).

Because the proof establishing the crime of rape did not use up the proof establishing the crime of kidnapping with bodily injury, the crimes did not merge; accordingly, the trial court did not err by refusing to merge two of defendant's kidnapping with bodily injury convictions with two of defendant's rape convictions. Collins v. State, 267 Ga. App. 784, 600 S.E.2d 802 (2004).

Rape and kidnapping.

- Trial court did not err in refusing to merge the kidnapping charge into rape charge, where the evidence authorized the jury to find that defendant, armed with a pistol, forced his way into the victim's car and drove off with the victim to a secluded area where he raped and beat her and moved to another location and again raped and abused the victim, and then drove away with her car and the property in it, leaving the naked victim behind. Clark v. State, 166 Ga. App. 366, 304 S.E.2d 494 (1983).

When the victim was kidnapped at knifepoint and then raped at another location, the two offenses were separate and did not merge; and since there was also evidence that, subsequent to completing the offense of rape, defendant again threatened the victim with the knife, these two offenses were separate and did not merge as a matter of fact. Edmonson v. State, 212 Ga. App. 449, 442 S.E.2d 300 (1994).

Kidnapping and aggravated sodomy.

- Kidnapping and aggravated sodomy are not included offenses as a matter of law and, even though they may be included as a matter of fact, where the same evidence was not used to prove both crimes, the trial court did not err by refusing to find a merger. Hardy v. State, 210 Ga. App. 811, 437 S.E.2d 790 (1993).

Kidnapping with bodily injury and malice murder.

- Kidnapping with bodily injury is not included in malice murder as a matter of law. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979), cert. denied, 445 U.S. 972, 100 S. Ct. 1666, 64 L. Ed. 2d 250 (1980).

Malice murder and kidnapping are not same offense for double jeopardy purposes even though they involve same transaction and considerably overlap each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Kidnapping with bodily injury and murder.

- Murder and kidnapping with bodily injury are not included crimes as a matter of law. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Murder and kidnapping with bodily injury are not included as a matter of fact under O.C.G.A. § 16-1-6(1) since these crimes have distinct elements. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Merger of battery and kidnapping with bodily injury.

- In a prosecution for kidnapping with bodily injury and battery, use of the same evidence to prove that defendant perpetrated battery as proof of the offense of kidnapping with bodily injury required reversal of defendant's conviction and sentence for battery. Holmes v. State, 229 Ga. App. 671, 494 S.E.2d 560 (1998).

Merger of aggravated assault and kidnapping with bodily injury.

- When aggravated assault conviction is included in kidnapping with bodily injury count, the former conviction and sentence will be vacated because there exists a merger of offenses as a matter of fact. Thornton v. State, 144 Ga. App. 595, 241 S.E.2d 478 (1978).

When one offense is established by the same but less than all of the facts required to establish another offense, the first merges into the second as a matter of fact; aggravated assault is a lesser included offense of, and merges with, the crime of kidnapping with bodily injury, and a trial court erred by failing to merge defendant's aggravated assault conviction into defendant's kidnapping with bodily injury conviction. Bailey v. State, 269 Ga. App. 262, 603 S.E.2d 786 (2004).

Aggravated stalking and domestic violence orders.

- State may not prosecute a defendant for aggravated stalking based upon the same set of facts previously used to prosecute the same defendant for violation of a domestic violence order. Kinney v. State, 223 Ga. App. 418, 477 S.E.2d 843 (1996).

Hijacking and armed robbery.

- O.C.G.A. § 16-5-44.1(d) supersedes the double jeopardy provision contained in O.C.G.A. § 16-1-7(a). Thus, the trial court did not err in refusing to merge the defendant's armed robbery and hijacking convictions. Boykin v. State, 264 Ga. App. 836, 592 S.E.2d 426 (2003).

Carjacking and armed robbery.

- Defendant's prosecution for a car hijacking was not barred by O.C.G.A. § 16-1-7(b) as the car hijacking and the armed robbery did not arise from the same conduct because the car hijacking incident and the armed robbery incident occurred three days apart, took place at different locations, and involved different victims. Syas v. State, 273 Ga. App. 161, 614 S.E.2d 803 (2005).

Separate convictions for armed robbery and hijacking a motor vehicle did not violate the state and federal prohibitions against double jeopardy, as the latter constituted a separate offense warranting a separate sanction under Georgia law, thus warranting an additional punishment. Dumas v. State, 283 Ga. App. 279, 641 S.E.2d 271 (2007).

Defendant's argument that separate convictions for armed robbery and hijacking a motor vehicle violated prohibitions against double jeopardy was properly rejected because O.C.G.A. § 16-5-44.1(d) expressly provided that hijacking a motor vehicle was a separate offense, superseding the statutory double jeopardy provisions of O.C.G.A. § 16-1-7. Souder v. State, 301 Ga. App. 348, 687 S.E.2d 594 (2009), cert. denied, No. S10C0536, 2010 Ga. LEXIS 343 (Ga. 2010).

Sequential offenses not inclusive.

- Kidnapping with bodily injury and aggravated battery occurred sequentially, and the former was completed when the latter was perpetrated. Robinson v. State, 210 Ga. App. 175, 435 S.E.2d 466 (1993).

Aggravated stalking.

- Prosecution of the defendant in Fulton County for aggravated stalking was not barred by defendant's previous conviction in Cobb County for aggravated stalking of the same victim, notwithstanding that the Cobb County conviction was introduced into evidence in the Fulton County prosecution in order to show a pattern of harassing and intimidating behavior. Daker v. State, 248 Ga. App. 657, 548 S.E.2d 354 (2001), cert. denied, 535 U.S. 1085, 122 S. Ct. 1977, 152 L. Ed. 2d 1035 (2002).

Defendant's convictions for two counts of aggravated stalking based on the defendant's following and contacting the victim did not merge for sentencing purposes because there was sufficient evidence from which the jury could find that the defendant, in violation of a protective order, both followed the victim to a hotel and then contacted the victim; the act of following was complete when the defendant arrived at the premises of the hotel because at that time the defendant violated the protective order by coming within 500 feet of a place where the victim was residing. Louisyr v. State, 307 Ga. App. 724, 706 S.E.2d 114 (2011).

Aggravated assault and kidnapping.

- Trial court did not err in denying defendant's motion to correct an illegal sentence, pursuant to O.C.G.A. §§ 16-1-6 and16-1-7, as defendant's convictions for aggravated assault and kidnapping, in violation of O.C.G.A. §§ 16-5-21 and16-5-40(a), respectively, did not merge as a matter of law, as only aggravated assault and kidnapping with bodily injury merged as a matter of law; further, the crimes did not merge as a matter of fact, as they were based on separate and distinct facts, and due to the timing of defendant's actions during the incident, the separate convictions were proper. Walker v. State, 275 Ga. App. 862, 622 S.E.2d 64 (2005).

Trial court did not err in declining to merge kidnapping counts with aggravated assault counts because the aggravated assault involved different conduct from the kidnapping and was completed prior thereto and, thus, the same conduct did not establish the commission of both offenses; even if the kidnapping counts involved the same conduct as the aggravated assault, neither was included in the other after application of the "required evidence" test. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).

Simple assault and kidnapping.

- Trial court did not err in declining to merge a defendant's convictions for assault and kidnapping with bodily injury because assault under O.C.G.A. § 16-5-20(a)(2) was established by evidence that the victim was placed in reasonable apprehension of immediately receiving a violent injury when defendant told the victim the defendant had a gun, and kidnapping with bodily injury in violation of O.C.G.A. § 16-5-40(a), on the other hand, was established by evidence that defendant abducted and held the victim against the victim's will in the victim's car, driving from one location to another, during which time the victim received bodily injuries. Walker v. State, 306 Ga. App. 16, 701 S.E.2d 523 (2010).

Aggravated assault conviction does not merge into robbery by intimidation conviction.

- As the offense of aggravated assault, O.C.G.A. § 16-5-21(a)(1), required proof of at least one additional fact which the offense of robbery by intimidation, O.C.G.A. § 16-8-41(a), did not, under the "required evidence" test of O.C.G.A. § 16-1-7, a defendant's aggravated assault conviction did not merge into the defendant's robbery by intimidation conviction. Elamin v. State, 293 Ga. App. 591, 667 S.E.2d 439 (2008).

Prosecution for kidnapping and escape. See Bailey v. State, 146 Ga. App. 774, 247 S.E.2d 588 (1978).

Prosecution for felony murder and kidnapping.

- Once the state tried and convicted petitioner for kidnapping, it would be barred from prosecuting petitioner for felony murder only if underlying felony upon which that prosecution was based were that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Incest and child molestation.

- Trial court correctly determined that child molestation did not merge with separate act of incestuous sexual intercourse. King v. State, 209 Ga. App. 529, 433 S.E.2d 722 (1993).

Aggravated child molestation and rape.

- Entering separate convictions and sentences for aggravated child molestation and rape was error where the evidence established that the injuries sustained by the victim as a result of the rape were the same injuries as those alleged as the basis for the charge of aggravated child molestation. Caldwell v. State, 263 Ga. 560, 436 S.E.2d 488 (1993).

Because defendant's aggravated child molestation and rape convictions were based on separate and distinct sexual acts and different conduct, those convictions could not have been included offenses under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, defendant's pro se motion to vacate the sentence as void was properly denied. Reed v. State, 297 Ga. App. 850, 678 S.E.2d 560 (2009).

Child molestation as included offense of rape.

- Accused may be prosecuted for both rape and child molestation based upon same conduct, but he may not be convicted of both. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

Child molestation and statutory rape.

- Trial court erred when it convicted defendant of child molestation because facts which were used to prove child molestation were the same facts which proved statutory rape, and the court should have merged the child molestation conviction with the statutory rape conviction. Dorsey v. State, 265 Ga. App. 404, 593 S.E.2d 945 (2004).

Child molestation and aggravated sodomy.

- Because the defendant relentlessly subjected his minor stepdaughter to countless episodes of molestation by performing acts of sodomy, the crimes of aggravated sodomy and child molestation were not merged since there were multiple, separate acts as a basis for each charge. McCollum v. State, 177 Ga. App. 40, 338 S.E.2d 460 (1985).

Child molestation under O.C.G.A. § 16-6-4(a) was not a lesser included offense of aggravated sodomy under O.C.G.A. § 16-6-2, where the defendant was charged with two different specific sexual acts at different times on the same day. Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987).

Child molestation and aggravated sodomy are legally distinct, and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769, cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019), cert. denied, 200 Ga. App. 896, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

Aggravated child molestation charge and the aggravated sodomy charge in each of the two indictments at issue were both based upon the same act of sodomy since only two of the three incidents involved an act of sodomy and, in those two incidents, each involved only one act of sodomy. Dobbins v. State, 262 Ga. 161, 415 S.E.2d 168 (1992).

Convictions for separate acts of aggravated sodomy and aggravated child molestation did not merge for sentencing purposes. Braddy v. State, 205 Ga. App. 424, 422 S.E.2d 260 (1992).

Child molestation and aggravated sodomy should have been merged for conviction and sentencing where a single act of oral sodomy, used to prove aggravated sodomy, also was the evidentiary basis for the charge of aggravated child molestation. Wyatt v. State, 222 Ga. App. 604, 475 S.E.2d 651 (1996).

Attempted aggravated child molestation and attempted aggravated sodomy.

- In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and16-1-7. Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408, 825 S.E.2d 909 (2019).

Child molestation and aggravated sexual battery.

- Defendant's child molestation conviction under O.C.G.A. § 16-6-4(a) did not merge under O.C.G.A. §§ 16-1-6(1) and16-1-7(a) into the defendant's aggravated sexual battery conviction under O.C.G.A. § 16-6-22.2 as the child molestation charge required proof that the defendant committed an immoral and indecent act with the intent to arouse and satisfy the defendant's sexual desires, whereas the aggravated sexual battery charge did not, and the aggravated sexual battery charge required proof of penetration, whereas the child molestation charge did not. Gaston v. State, 317 Ga. App. 645, 731 S.E.2d 79 (2012).

Aggravated child molestation conviction merged into the aggravated sodomy conviction as a matter of fact because defendant's single act of anal sodomy was necessary to prove the aggravated sodomy count of the indictment, so that there was no remaining evidence upon which to base defendant's conviction for an additional count of aggravated child molestation. Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000), cert denied, 532 U.S. 1029, 121 S. Ct. 1979, 149 L. Ed. 2d 771 (2001).

Aggravated child molestation and false imprisonment.

- Trial court was not required to merge the defendant's false imprisonment and aggravated child molestation convictions since the false imprisonment and aggravated child molestation convictions could be sustained based on different conduct, therefore, separate convictions were appropriate. Specifically, the indictment averred that the defendant committed false imprisonment by unlawfully detaining the victim in violation of the victim's personal liberty and committed aggravated child molestation by forcing the victim to perform oral sex on him and there was evidence that on one occasion, the defendant locked the victim in the home and would not let the victim leave and, as to the aggravated child molestation conviction, there was evidence that the defendant forced the victim to perform oral sex on the defendant on repeated occasions spanning several years. Metts v. State, 297 Ga. App. 330, 677 S.E.2d 377 (2009).

Child molestation and cruelty to children.

- Trial court did not err in failing to merge the defendant's convictions for child molestation, O.C.G.A. § 16-6-4(a), and cruelty to children, O.C.G.A. § 16-5-70, because each crime required proof of at least one additional element that the other did not, and thus, even if the same conduct established the commission of both child molestation and cruelty to children, the two crimes did not merge; cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b), and in contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant's or the child's sexual desires under O.C.G.A. § 16-6-4(a). Chandler v. State, 309 Ga. App. 611, 710 S.E.2d 826 (2011).

Multiple conviction for cruelty to children.

- Trial court erred in failing to merge Counts 3 and 4, which alleged two counts of cruelty to children in the second degree as to the first child, for sentencing purposes as each of the counts asserted that the defendant's different acts caused a different type of harm, and each required different evidence to prove harm, because Count 3 charged the defendant with causing excessive mental pain by confining the child in a room for months without sufficient mental stimulation and social interaction; and Count 4 charged the defendant with causing cruel and excessive physical pain by failing to provide the child with physical exercise. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).

Cruelty to children and use of fighting words.

- Evidence authorized a jury charge on the offense of "fighting words," where defendant schoolteacher was indicted for battery and cruelty to children, and the proof tracked the indictment which set forth words defendant said to a student which would fall within the parameter of those forbidden by the "fighting words" statute. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).

No merger of aggravated battery and cruelty to children.

- Aggravated battery and cruelty to children each requires proof of at least one additional element which the other does not, and the two crimes are not so closely related that multiple convictions are prohibited under O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct establishes the commission of both aggravated battery and cruelty to children, the two crimes do not merge, and thus a defendant was properly convicted of both crimes (overruling Jones v. State, 276 Ga. App. 762 (624 S.E.2d 291) (2005); Etchinson v. State, 245 Ga. App. 449 (538 S.E.2d 87) (2000); and Harmon v. State, 208 Ga. App. 271 (430 S.E.2d 399) (1993)). Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Merger of child molestation crimes.

- After the defendant was convicted of four counts of child molestation, the court of appeals erred in evaluating the defendant's claim that three of the child molestation counts should have been merged together using the "required evidence" test because the defendant was convicted of multiple counts of the same crime, and the court of appeals should have used the applicable unit-of-prosecution analysis to determine whether the three child molestation counts merged. Scott v. State, 306 Ga. 507, 832 S.E.2d 426 (2019).

Offenses of false imprisonment and aggravated assault did not merge with the offenses of rape and aggravated sodomy where the rape victim was cut with a knife during a break in the numerous sexual assaults committed upon the victim, and where the victim was forced to lie on the floor motionless while the defendant left the room for a period of time. Gilbert v. State, 176 Ga. App. 561, 336 S.E.2d 828 (1985).

Acquittal on aggravated sodomy charge did not bar conviction for sexual assault under another count of the indictment. The dates alleged for the two charges were different, and the victim recounted two separate incidents when defendant performed oral sex on the victim. In short, the charges did not involve the same conduct, and no substantive or procedural aspects of double jeopardy were violated. Brown v. State, 188 Ga. App. 510, 373 S.E.2d 293 (1988).

Voluntary manslaughter and burglary are not included offenses within the meaning of former Code 1933, § 26-506(a)(1). Oglesby v. State, 243 Ga. 690, 256 S.E.2d 371 (1979).

Burglary conviction not bar to rape conviction.

- When the defendant was convicted of rape after pleading guilty to burglary, a motion for autrefois convict was denied because the two separate crimes arose from the same series of acts and defendant's guilty plea to burglary did not operate as a conviction of the rape charge so as to bar the prosecution thereof. Jones v. State, 169 Ga. App. 4, 311 S.E.2d 485 (1983).

Defendant's burglary conviction did not merge with rape and sodomy charges because the burglary was completed when defendant entered the apartment without authority with intent to commit the other crimes charged. Hardegree v. State, 230 Ga. App. 111, 495 S.E.2d 347 (1998).

Burglary and felony murder with burglary as predicate felony.

- While the evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of felony murder, with burglary as the predicate felony, armed robbery, burglary, possession of a firearm during the commission of a crime, and misdemeanor possession of marijuana, the defendant's conviction for burglary could not stand because the burglary conviction served as the predicate felony for the felony murder conviction; thus, it was error to sentence the defendant for both felony murder and burglary. Young v. State, 291 Ga. 627, 732 S.E.2d 269 (2012).

Murder and concealing a death are separate crimes, requiring separate acts and criminal intent. Durham v. State, 243 Ga. 408, 254 S.E.2d 359 (1979).

Killing two persons with single stroke.

- When one is charged with homicide of different people in different counts and is found guilty on each count, that person may be sentenced separately on each count to run consecutively; killing different persons constitutes separate crimes even though done at the same time with one stroke of the same death-dealing instrument. Rogers v. State, 163 Ga. App. 641, 295 S.E.2d 140 (1982), overruled on other grounds by Bailey v. State, 2016 Ga. App. LEXIS 433 (Ga. Ct. App. 2016).

Felony murder and malice murder.

- In a case involving two homicides, when the evidence supported convictions for malice murder, felony murder convictions merged into the malice murder convictions by operation of law and, thus, judgments of conviction and sentences on the felony murder counts would be vacated. Barker v. State, 263 Ga. 746, 438 S.E.2d 625 (1994).

Malice murder and felony murder.

- Trial court erred by sentencing defendant to concurrent sentences of life imprisonment for malice murder and felony murder because there was only a single victim; thus, the defendant could not be convicted and sentenced for both murder counts. Gamble v. State, 291 Ga. 581, 731 S.E.2d 758 (2012).

Escape merged with felony murder.

- Since the underlying felony charged to the jury for the felony murder charge was escape with a dangerous weapon, defendant's separate conviction for this escape was set aside as having merged with the felony murder. Thomas v. State, 256 Ga. 176, 345 S.E.2d 350 (1986).

Two aggravated assaults, each against different individuals, are separate crimes.

- When two aggravated assault indictments stemming from a single course of conduct differ only in that a different victim was named in each, the difference was crucial as two separate and distinct crimes were thereby charged and former Code 1933, § 26-506 did not apply. Heard v. State, 126 Ga. App. 62, 189 S.E.2d 895 (1972).

No separation of time in assault and battery.

- In defendant's convictions on one count of simple assault and two counts of battery resulting from a fight with a romantic friend, trial court erred by not merging two counts of battery for which defendant was sentenced to two consecutive 12-month terms as the state failed to present evidence that two separate batteries were completed; the state presented no evidence that defendant delivered the blows to the friend in two completed exchanges separated by a meaningful interval of time or with distinct intentions. Thompson v. State, 291 Ga. App. 355, 662 S.E.2d 135 (2008).

Robbing two victims constitutes two offenses thus no merger.

- Two armed robbery convictions under O.C.G.A. § 16-8-41(a) did not merge pursuant to O.C.G.A. § 16-1-7(a)(1) as: (1) a store's money was taken from the immediate presence of two employees, who were both responsible for and had possession of the store's receipts, regardless of which employee may actually have been counting the money when the robbery occurred; (2) each employee who was robbed was a victim, regardless of who owned the money; and (3) as two victims were robbed, defendant could be charged with the robbery of each victim. Green v. State, 265 Ga. App. 126, 592 S.E.2d 901 (2004).

Crime of terroristic threats not included within crime of aggravated assault with intent to murder. Echols v. State, 134 Ga. App. 216, 213 S.E.2d 907 (1975).

Carrying concealed weapon not included in aggravated assault with deadly weapon.

- Offense of carrying a concealed weapon is not included in offense of aggravated assault with deadly weapon. Howard v. State, 128 Ga. App. 807, 198 S.E.2d 334 (1973).

Carrying weapon without license is not included in aggravated assault with deadly weapon. Thomas v. State, 128 Ga. App. 538, 197 S.E.2d 452 (1973).

Multiple felony convictions not related to separate traffic violations.

- Felony charges against a defendant, which included armed robbery, hijacking a motor vehicle, kidnapping, and possessing a firearm during the commission of a crime, did not require proof of the same elements involved in the traffic violations for which the defendant was convicted of in a different court; therefore, the felony convictions imposed against the defendant did not violate the defendant's right against double jeopardy. Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007).

3. Crimes Against Property

Armed robbery and motor vehicle theft as included offenses.

- One who takes a motor vehicle belonging to another from that person by use of an offensive weapon would be guilty of both armed robbery and motor vehicle theft but could be punished for only one crime. Holt v. State, 239 Ga. 606, 238 S.E.2d 399 (1977).

Possession of firearms as lesser included offense of armed robbery.

- Where only one firearm is involved in commission of armed robbery, its possession becomes a lesser included offense of armed robbery, and accused may not be convicted of both offenses. Jackson v. State, 143 Ga. App. 406, 238 S.E.2d 752 (1977).

Possession of a firearm during the commission of a felony did not merge with an attempted armed robbery conviction because the crime of possession of a firearm is considered to be a separate offense under O.C.G.A. § 16-11-106(b) and (e). McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).

Possession of a firearm by a convicted felon is not "included" in crime of armed robbery even though both offenses arose during one transaction. Coleman v. State, 163 Ga. App. 173, 293 S.E.2d 395 (1982).

When a convicted felon is in possession of a sawed-off shotgun, two separate and distinct crimes are being committed, because a prohibited person is in possession of a prohibited weapon. One crime is not "included" in the other and they do not merge. Bivins v. State, 166 Ga. App. 580, 305 S.E.2d 29 (1983).

Theft by deception and theft by taking.

- Defendant's rights against double jeopardy are not infringed upon by prosecutions and subsequent convictions for both theft by deception and theft by taking. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).

Forgery and false writing.

- When defendant was convicted of first-degree forgery under O.C.G.A. § 16-9-1 and false writing under O.C.G.A. § 16-10-20 for obtaining expungement order by presenting a Georgia Crimes Information Center certificate that had been altered to state that defendant had no criminal record, counts were not included in each other under O.C.G.A. §§ 16-1-6 and16-1-7; false writing charge did not require proof that the writing purported to be made by authority of one who in fact gave no such authority, and forgery charge did not require proof that the writing was made or used in a matter within jurisdiction of the district attorney's office. Jones v. State, 290 Ga. App. 490, 659 S.E.2d 875 (2008).

Entering automobile with intent to commit theft and theft.

- When entering automobile with intent to commit theft was based on the same entry into the automobile which resulted in the theft of a pocketbook, and the evidence introduced to establish the latter also established the former, the former was included in the latter as a matter of fact and defendant could not be convicted of both offenses. Phillips v. State, 162 Ga. App. 199, 290 S.E.2d 142 (1982).

Theft of automobile may constitute armed robbery.

- While theft of automobile may be committed without committing armed robbery, theft of automobile may constitute armed robbery. Roberts v. State, 228 Ga. 298, 185 S.E.2d 385 (1971).

Offenses of robbery and armed robbery did not merge as a matter of law, when separate incidents (simple taking of a pistol and then taking the other items at gunpoint) involved different actions, different specific objectives or intents, and different victims. Millines v. State, 188 Ga. App. 655, 373 S.E.2d 838 (1988).

Armed robbery and motor vehicle theft do not necessarily arise from same conduct, and independent prosecutions for each offense will not necessarily implicate the law's prohibition against placing defendant in double jeopardy or subjecting defendant to "successive" or "multiple" prosecutions. Smith v. State, 173 Ga. App. 728, 327 S.E.2d 839 (1985).

Kidnapping as incidental to, rather than included in, robbery.

- When facts supporting robbery charge included taking property in presence of boys, and defendants' additional conduct of forcing the boys into various rooms and the attic and tying them were incidental to, but not part of, the robbery, that conduct constituted a separate crime, kidnapping, which did not merge with the robbery as a matter of fact. Chambley v. State, 163 Ga. App. 502, 295 S.E.2d 166 (1982).

Burglary and robbery not lesser included offenses of each other as matter of law.

- Statutory definition of burglary and robbery makes it clear that the legislature intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by same proof of all facts; thus, neither crime is a lesser included offense of the other as a matter of law or fact. Moore v. State, 140 Ga. App. 824, 232 S.E.2d 264 (1976), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1356 (1983).

Neither burglary nor robbery is a lesser, or included, offense of the other as a matter of law or fact, for the facts must differ to convict for each offense. Luke v. State, 171 Ga. App. 201, 318 S.E.2d 833 (1984).

No double jeopardy violation occurred when defendant was convicted of and sentenced for both burglary and robbery. Luke v. State, 171 Ga. App. 201, 318 S.E.2d 833 (1984).

Burglary, kidnapping, terroristic threats, and possession of a firearm did not merge with attempted armed robbery.

- Convictions for burglary, kidnapping, terroristic threats, and possession of a firearm during the commission of a felony did not merge with attempted armed robbery conviction because the attempted armed robbery was complete before the crimes were committed inside the residence; the defendant discussed with the co-worker the idea to dress up as a heating and air technician to perform a robbery, traveled to the residence armed with handguns and a hollow clipboard used to conceal the handgun, and pointed the handgun at a victim before entering the house. McKinney v. State, 274 Ga. App. 32, 619 S.E.2d 299 (2005).

Burglary and murder as included offenses.

- Charges of burglary based on defendant's intent to commit aggravated assault on dwelling's occupant, and murder for death of occupant during burglary, were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553, 300 S.E.2d 301 (1983), overruled on other grounds by Venturino v. State, 830 S.E.2d 110, 2019 Ga. LEXIS 435 (Ga. 2019).

Theft of numerous articles in one transaction.

- If in single transaction more articles than one belonging to same owner are stolen, indictment may charge larceny of the whole in one count. It is but one larceny. Breland v. State, 135 Ga. App. 478, 218 S.E.2d 153 (1975).

In prosecution for theft, the evidence showed that the tractor and plow were stolen at the same time, from the same place and from the same victim; thus, former Code 1933, § 26-506(a)(1) prohibited multiple conviction, since the theft of the plow was included within the larceny of the tractor. Brogdon v. State, 138 Ga. App. 900, 228 S.E.2d 5 (1976).

After the defendant was convicted of both burglary and theft by taking, the conviction and sentence for theft by taking was set aside because theft by taking is a lesser included offense to burglary, and an accused may not be convicted of more than one crime if one crime is included in the other. McClinic v. State, 172 Ga. App. 54, 321 S.E.2d 796 (1984).

Crimes against property.

- Defendant was properly convicted of both burglary and financial transaction card theft after gaining entry into the dwelling as each offense had distinct elements. McConnell v. State, 263 Ga. App. 686, 589 S.E.2d 271 (2003).

Criminal trespass as lesser included offense of burglary.

- Defendant could properly be sentenced to serve consecutive terms on defendant's convictions of criminal damage to property in the second degree and criminal trespass, where the latter crime had been charged as the lesser offense of burglary. Williams v. State, 180 Ga. App. 854, 350 S.E.2d 837 (1986).

State may convict and punish accused for burglary and unlawful possession of firearm by a previously convicted felon, when the firearm was taken in the burglary. The offenses charged were separate and distinct and there was no merger; evidence used to establish the burglary was not again used to establish the later crime of possession of a weapon by a convicted felon. Bogan v. State, 177 Ga. App. 614, 340 S.E.2d 256 (1986).

Criminal trespass and criminal damage to property.

- When the defendant was convicted of criminal damage to property in second degree (a felony) and criminal trespass (a misdemeanor) and when the offenses were committed at different apartments under different tenancies, such convictions did not fall within the purview of former Code 1933, § 26-506(a). Hiatt v. State, 133 Ga. App. 111, 210 S.E.2d 22 (1974).

Residential mortgage fraud and theft by deception.

- Trial court erred in quashing an indictment for counts of residential mortgage fraud, in violation of O.C.G.A. § 16-8-102, and counts of felony theft by deception, in violation of O.C.G.A. § 16-8-3, because the indictment was not duplicitous under O.C.G.A. § 16-1-7(a)(2). State v. Corhen, 306 Ga. App. 495, 700 S.E.2d 912 (2010).

Three vehicle collisions arising out of erratic driving arose from the same conduct.

- Pursuant to O.C.G.A. § 16-1-7, a defendant could not be prosecuted for DUI and other traffic citations by a city after the defendant had already pled guilty to charges issued by the state patrol arising out of the same course of conduct. Although the defendant struck three different cars, there was no break in the action of the defendant's erratic driving. Dean v. State, 309 Ga. App. 459, 711 S.E.2d 42 (2011).

4. Application to Other Crimes

Possession of cocaine included in trafficking offense.

- Offenses of possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses, as a matter of fact, of the trafficking offense since proof of the two possession offenses was established by "the same or less than all the facts" required to establish the distribution offense; thus, it was error to convict defendant of all three offenses. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).

Selling cocaine and selling cocaine within 1000 feet of public housing project.

- Convictions for selling cocaine (O.C.G.A. § 16-13-30) and selling cocaine within 1000 feet of a public housing project (O.C.G.A. § 16-13-32.5) did not merge because the latter statute contains a specific non-merger provision and the intent thereof is simply to increase the punishment for violating both statutes. Harper v. State, 213 Ga. App. 611, 445 S.E.2d 300 (1994).

Drug possession.

- Trial court did not err when the court granted the defendant's plea in bar as to the second accusation for possession of Xanax because the state had charged the defendant with the identical crime of possession of an unspecified amount of Xanax on a prior date in two accusations, the second of which was brought after the defendant had pled guilty to the first. State v. Pruiett, 324 Ga. App. 789, 751 S.E.2d 579 (2013).

Trial court erred by granting the defendant's plea in bar as to the second accusation's charges for possession of methamphetamine, clonazepam, and marijuana because the defendant could not have been convicted of possession of those drugs in a former prosecution, which involved only Xanax. State v. Pruiett, 324 Ga. App. 789, 751 S.E.2d 579 (2013).

Illegal possession of drugs as lesser included offense of illegal sale.

- Illegal sale and distribution of LSD and possession of LSD are included offenses. Wells v. State, 126 Ga. App. 130, 190 S.E.2d 106 (1972).

When the indictment shows offenses allegedly took place on the same date and evidence conclusively shows defendant's arrest arose out of a single transaction, the defendant's conviction of the offense of illegally selling and distributing heroin necessarily includes the offense of possessing heroin. Sturgis v. State, 128 Ga. App. 85, 195 S.E.2d 682 (1973).

Offense of sale of marijuana and heroin necessarily included offense of possession of marijuana and heroin, unless evidence showed they were on different occasions. Burns v. State, 127 Ga. App. 828, 195 S.E.2d 189 (1973).

As a matter of law, crime of illegal possession of heroin is not included in crime of illegal sale of heroin for purposes of double jeopardy and multiple prosecution. Wilson v. Hopper, 234 Ga. 859, 218 S.E.2d 573 (1975).

When the defendant is convicted of both sale and possession of illegal drugs, and evidence required to convict on illegal sale was the only evidence showing possession, the sentence on a conviction of a lesser included crime (possession) cannot stand. Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975), overruled on other grounds, State v. Hudson, 293 Ga. 656, 748 S.E.2d 910 (2013).

Although the accomplice's conduct in fraudulently representing to the pharmacist that the accomplice had a doctor's authority to call in the prescriptions occurred in a single telephone call, the defendant's conduct of acquiring possession of the several different controlled substances was not the same conduct for the purpose of deciding whether the offenses merged because acquiring possession of the first prescription drug was not the same conduct as acquiring possession of the second prescription drug, and neither were the same as acquiring possession of the third prescription drug; thus, those offenses of obtaining a controlled substance by fraud did not merge for sentencing purposes. Hopkins v. State, 328 Ga. App. 844, 761 S.E.2d 896 (2014).

Possession of drug-related objects conviction merged as a matter of fact into defendant's felony conviction for possession of cocaine. Reddick v. State, 249 Ga. App. 678, 549 S.E.2d 151, cert. denied, No. S01C1352, 2001 Ga. LEXIS 802 (Oct. 1, 2001).

Trafficking and possession of methamphetamine.

- Because the indictment for a charge of possession of methamphetamine clearly stated that it was based upon methamphetamine "separate from the quantity described" in the separate trafficking charge, the trial court did not err in failing to merge the two offenses. Bellamy v. State, 243 Ga. App. 575, 530 S.E.2d 243 (2000).

Possession and distribution of methamphetamine.

- Possession of methamphetamine and distribution of methamphetamine charges did not merge under O.C.G.A. § 16-1-7 when defendant smoked methamphetamine in the company of a second person who later returned with a fresh supply of the drug with which defendant injected the second person; methamphetamine that defendant possessed while smoking constituted a separate amount of methamphetamine not accounted for in the distribution charge. Crutchfield v. State, 291 Ga. App. 24, 660 S.E.2d 878 (2008).

Possession of illegal drug is crime separate and distinct from illegal sale of that same substance, where the illegal sales were alleged to have taken place on dates different from the date on which drugs were found in defendant's residence. Morgan v. State, 168 Ga. App. 310, 308 S.E.2d 583 (1983).

Obtaining controlled substance by theft and theft by taking.

- When the defendant's obtaining a controlled substance by theft conviction was reversed, the defendant's plea in bar to the state's subsequent indictment of the defendant for obtaining a controlled substance by theft was improperly denied because, although constitutional jeopardy did not attach to the obtaining a controlled substance by theft count in the former prosecution as that offense was not within the jurisdiction of the trial court as a result of the state's failure to indict it, constitutional jeopardy did attach to the misdemeanor theft by taking count and, thus, double jeopardy prevented a subsequent prosecution of offenses arising from the same transaction, including the obtaining a controlled substance by theft count. Goodwin v. State, 341 Ga. App. 530, 802 S.E.2d 3 (2017).

Delivery of marijuana and distribution of marijuana are both distinct violations of O.C.G.A. § 16-13-30(b); they are not included but each may be committed exclusive of the other. Buford v. State, 162 Ga. App. 498, 291 S.E.2d 256 (1982).

Possession of drug paraphernalia and violation of the Georgia Controlled Substance Act, O.C.G.A. § 16-13-1 et seq., are not included crimes as a matter of fact or of law. Corbitt v. State, 169 Ga. App. 739, 315 S.E.2d 25 (1984).

Trial court erred in sentencing defendant for possession of methamphetamine and possession with the intent to distribute methamphetamine where the convictions were based upon the same evidence. Gooch v. State, 249 Ga. App. 643, 549 S.E.2d 724 (2001).

Possession of marijuana and possession with intent to distribute.

- Offense of possession of marijuana was included in the offense of possession of marijuana with intent to distribute, where the possession charge could be established by proof of a less culpable mental state (general criminal intent) than was required to establish the commission of possession with intent to distribute (specific criminal intent to distribute). Talley v. State, 200 Ga. App. 442, 408 S.E.2d 463 (1991).

Financial transaction card theft not lesser included offense of financial transaction card fraud.

- Financial transaction card theft, O.C.G.A. § 16-9-31, is not a lesser included offense of financial transaction card fraud, O.C.G.A. § 16-9-33; thus, defendant's prior conviction for the former offense did not preclude prosecution for the latter. Sword v. State, 232 Ga. App. 497, 502 S.E.2d 334 (1998).

Offenses of theft by conversion and securities violations did not merge.

- Trial court did not err in failing to merge the theft by conversion counts under O.C.G.A. § 16-8-3, and the securities violation counts under O.C.G.A. § 10-5-12 filed against defendant because the state had to prove separate facts to find defendant guilty of the theft by conversion offenses and the violations of the Georgia Securities Act, O.C.G.A. § 10-5-1 et seq. Furthermore, the securities violation counts were complete before the theft conversion occurred. Lavigne v. State, 299 Ga. App. 712, 683 S.E.2d 656 (2009).

Gambling.

- Gambling is one thing and operating a gambling house is a kindred but entirely different thing; different evidence is required to convict of these separate offenses. No absurdity or repugnancy is created by acquittal of gambling and conviction of operating a gambling house. McGahee v. State, 133 Ga. App. 964, 213 S.E.2d 91 (1975).

Although arising from same transaction, offenses of possession of gambling devices and equipment, and commercial gambling by operating a gambling place, are separate and distinct. Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578, cert. denied, 423 U.S. 895, 96 S. Ct. 194, 46 L. Ed. 2d 127 (1975).

Trial court did not err in sentencing defendant for commercial gambling, communicating gambling information and keeping a gambling place; the latter two offenses are not included in offense of commercial gambling. Romano v. State, 162 Ga. App. 816, 292 S.E.2d 533 (1982).

Insurance fraud violations.

- Defendant was properly sentenced to separate terms for insurance fraud violations committed by several co-conspirators; each fraudulent claim made was a separate offense and did not merge under O.C.G.A. § 16-1-7. Crowder v. State, 222 Ga. App. 351, 474 S.E.2d 246 (1996).

Dogfighting was not, as a matter of law or of fact, a lesser included offense of commercial gambling. Hargrove v. State, 253 Ga. 450, 321 S.E.2d 104 (1984).

Animal cruelty and intimidating court officers erroneously joined.

- Trial court erred in joining the animal cruelty charge with that of intimidating court officers because there was no showing that the crimes alleged were based on the same conduct, were part of a single scheme or plan, or were a series of connected acts; thus, joinder was not authorized. Harrell v. State, 297 Ga. 884, 778 S.E.2d 196 (2015).

Convictions of laying drags, reckless driving and speeding were not violative of O.C.G.A. § 16-1-7 as each offense was established by proof of different facts and evidence shows that the three offenses occurred at separate times and locations during pursuit of appellant's vehicle. Neither offense was included in the other as a matter of fact or law. Phillips v. State, 162 Ga. App. 471, 291 S.E.2d 776 (1982).

Reckless driving, reckless conduct and speeding merge.

- Trial court erred in failing to merge defendant's convictions for reckless driving, speeding, and reckless conduct since defendant's conviction for reckless conduct was proved by less than all of the facts used to prove defendant guilty of reckless driving, and the speeding charge, as alleged, was an element of both reckless driving and reckless conduct. Carrell v. State, 261 Ga. App. 485, 583 S.E.2d 167 (2003).

Reckless driving and reckless conduct do not merge.

- Trial court did not err by failing to merge the crimes of reckless driving, O.C.G.A. § 40-6-390, and reckless conduct, O.C.G.A. § 16-5-60, for punishment because the two offenses did not merge for sentencing when §§ 40-6-390 and16-5-60 each had a provision that required proof of a fact that the other did not, and to establish a violation of § 40-6-390, the state only had to prove that the defendant drove the car in a manner exhibiting reckless disregard for the safety of persons or property; reckless conduct requires proof of harm or an actual threat of harm to the bodily safety of another person and does not require that the crime be committed while driving a motor vehicle, but reckless driving does not require that there be an injured or threatened party and instead merely requires that the state prove a general disregard for the safety of persons or property while driving a motor vehicle. Howard v. State, 301 Ga. App. 230, 687 S.E.2d 257 (2009).

Reckless conduct conviction no bar to aggressive driving conviction.

- Defendant's previous conviction for reckless conduct under O.C.G.A. § 16-5-60 did not bar a later conviction for aggressive driving under O.C.G.A. § 40-6-397 when both convictions arose out of the same incident, and when conviction for aggressive driving did not require proof of the fact that defendant endangered the bodily safety of the other driver and other driver's family, while reckless conduct conviction did not require proof of the fact that defendant drove with the intent to annoy, harass, intimidate, and injure another; thus, each crime required proof of a fact that the other did not, so neither offense was included in the other so as to violate the substantive bar against double jeopardy of O.C.G.A. § 16-1-7. Winn v. State, 291 Ga. App. 16, 660 S.E.2d 883 (2008).

Hunting on public road from motor vehicle at night.

- After the defendants hunted from a motor vehicle on a public road at night using a light exceeding six volts, it was not in error to convict the defendants of the three separate crimes of hunting at night, hunting on a public road, and hunting from a motor vehicle. Sanford v. State, 169 Ga. App. 769, 315 S.E.2d 281 (1984).

Driving under the influence was lesser included offense of first degree vehicular homicide, and conviction of both offenses was proscribed. Duncan v. State, 183 Ga. App. 368, 358 S.E.2d 910 (1987).

Driving under the influence and probationary license violation.

- Defendant's convictions for operating a motor vehicle under the influence of alcohol while having a probationary license and driving under the influence of alcohol could not both stand since, under the facts, the latter was a lesser included offense in the violation of the probationary license offense. Williams v. State, 223 Ga. App. 209, 477 S.E.2d 367 (1996).

Improper lane change, driving without headlights, and driving under the influence of alcohol (DUI) convictions did not merge because the facts alleged in the accusation with regard to the DUI charge were not also sufficient to establish the lesser offenses of improper lane change and driving without headlights. Parker v. State, 249 Ga. App. 530, 549 S.E.2d 154 (2001).

DUI and criminal trespass separate transactions.

- Motion in autrefois convict and plea of former jeopardy was properly denied because the offense of DUI did not arise from the same transaction as the criminal trespass; the defendant was arrested on a warrant for criminal trespass at the residence of a live-in girlfriend, while the defendant was arrested for DUI near, but not at, the residence. Thus, the incidents were separate transactions. Johns v. State, 319 Ga. App. 718, 738 S.E.2d 304 (2013).

Driving on the wrong side of the road is a lesser included offense of second degree vehicular homicide. Rank v. State, 179 Ga. App. 28, 345 S.E.2d 75 (1986).

Improper passing and reckless driving are lesser included offenses of vehicular homicide. Nash v. State, 179 Ga. App. 702, 347 S.E.2d 651 (1986).

Violation of oath and theft by taking not merged.

- Charges of violation of oath by a public officer and theft by taking in two indictments do not merge, since the essential elements for each crime are different, even though there may be an overlapping of proof between the two. Freeman v. State, 184 Ga. App. 678, 362 S.E.2d 413 (1987).

Selling alcohol without license and selling on Sunday.

- Although the two crimes alleged share the same essential element of selling alcoholic beverages, each of the crimes has an additional essential element distinct from the other. Proof that defendants sold alcohol without a license would not prove that they sold alcoholic beverages on Sunday, nor would proof of the latter establish the former. Martin v. State, 185 Ga. App. 145, 363 S.E.2d 765 (1987).

Offenses of furnishing alcohol to minors and maintaining a disorderly house did not merge, because each of the offenses had elements not required by the other and each prohibited a distinct type of criminal conduct. Tate v. State, 198 Ga. App. 276, 401 S.E.2d 549 (1991).

Predicate offenses for RICO violation.

- Convictions on 75 counts of stealing public records could not stand, where the state, by choosing gratuitously to include as predicates for a Racketeer Influenced and Corrupt Organization (RICO) violation all of the instances of the prohibited acts recited in the counts, "used up" the evidence, so that there was none left to form the basis for the separate offenses enumerated in the counts. Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888, cert. denied, 189 Ga. App. 911, 376 S.E.2d 888 (1989).

Failure to strike from a Racketeer Influenced and Corrupt Organizations Act (RICO) indictment, as predicate offenses, three thefts which had been formerly prosecuted was harmless error, where there was no reason to infer that defendant's guilty pleas to other offenses were tainted or otherwise affected by the superfluous addition of predicate offenses which had formerly been prosecuted. Bethune v. State, 198 Ga. App. 490, 402 S.E.2d 276, cert. denied, 198 Ga. App. 897, 402 S.E.2d 276 (1991).

Misuse of a firearm while hunting and failure to report an accidental injury while hunting were both properly prosecuted against defendant without effecting impermissible multiple convictions since the two offenses contain some different elements and require proof of different facts and thus are not included within each other. Lewis v. State, 207 Ga. App. 212, 427 S.E.2d 578 (1993).

Conspiracy and possession of tools for the commission of a crime.

- Even though the crimes of conspiracy and possession of tools for the commission of a crime do not merge as a matter of law, because the form of the indictment required proof of the possession of tools in order to prove the conspiracy, the offenses merged as a matter of fact. Green v. State, 240 Ga. App. 377, 523 S.E.2d 581 (1999).

Prosecution for violation of O.C.G.A.

§ 40-6-395(a) and (b)(5)(A) valid. - Defendant could be lawfully prosecuted for both O.C.G.A. § 40-6-395(a) and (b)(5)(A) without offending O.C.G.A. § 16-1-7(a), although defendant could not be sentenced for both; the court found that because all of the evidence was used up to prove the crime of felony fleeing or attempting to elude, the misdemeanor conviction for fleeing or attempting to elude merged into the greater offense. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003).

Defendant not entitled to jury charge on misdemeanor offense.

- Defense counsel was not ineffective for failing to request a jury charge on the misdemeanor offense of giving a false name to a law enforcement officer under O.C.G.A. § 16-10-25 because the conduct for which a defendant was indicted, falsely telling a GBI special agent that the defendant did not make a9-1-1 call regarding a fire at another agent's residence when in fact the defendant did make the call, would not constitute a violation of § 16-10-25; the defendant failed to show under O.C.G.A. § 16-1-7(a)(1) that the same conduct would result in the violation of the misdemeanor statute. Mahoney v. State, 296 Ga. App. 570, 675 S.E.2d 285 (2009).

Joint Prosecution of Offenses

1. In General

O.C.G.A. § 16-1-7(b) establishes a prosecutorial bar which is broader than that in the United States and Georgia Constitutions, and than the literal provisions of O.C.G.A. § 16-1-8(b)(1). Cochran v. State, 176 Ga. App. 58, 335 S.E.2d 165 (1985).

"Same conduct" construed.

- The phrase "the same conduct" in O.C.G.A. § 16-1-7(b) has been used interchangeably with the phrase "the same transaction." Harrell v. State, 196 Ga. App. 101, 395 S.E.2d 598 (1990).

When two or more offenses may be tried together.

- Two or more offenses may be tried together if they are of same or similar character, even if not part of a single scheme or plan; or if they are based on same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).

Offenses may be joined for trial when they are based: (1) on the same conduct; or (2) on a series of acts connected together; or (3) on a series of acts constituting parts of a single scheme or plan. If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. Isbell v. State, 179 Ga. App. 363, 346 S.E.2d 857 (1986), cert. denied, 479 U.S. 1098, 107 S. Ct. 1319, 94 L. Ed. 2d 172 (1987).

Where the evidence showed a continuous scheme or ongoing spree such that evidence of one incident would be admissible in the trial of the similar crimes committed the same night in the other incident, the trial court did not abuse its discretion in granting the state's motion to consolidate the indictments for trial. Moore v. State, 245 Ga. App. 641, 537 S.E.2d 764 (2000).

Driving under the influence and reckless driving merged into vehicular homicide.

- Convictions for driving under the influence of alcohol and reckless driving merged into a vehicular homicide conviction and were vacated. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

Offenses arising from same conduct, within jurisdiction of single court, must be prosecuted in single action. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).

Offenses arising from same conduct, but multiple jurisdictions.

- After defendant pled guilty to theft by taking for writing fraudulent checks, defendant could subsequently be prosecuted for forgery for uttering and delivering the checks, without offending the provision of O.C.G.A. § 16-1-7(b), prohibiting multiple prosecutions for crimes arising from the same conduct, because, as venue for the two prosecutions arose in different counties, the offenses were not known to the proper prosecutor and were not within the jurisdiction of a single court. Furthermore, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-6 or O.C.G.A. § 16-1-7(a), because the two crimes were not lesser included offenses of the other. Cade v. State, 262 Ga. App. 206, 585 S.E.2d 172 (2003).

Same conduct and same jurisdiction not shown.

- Defendant's conviction for driving under the influence (DUI) less safe was affirmed because the defendant's actions in the Fulton County hit and run incident and the defendant's actions in the Gwinnett County DUI less-safe incident were neither the same transaction nor the same conduct as contemplated by O.C.G.A. § 16-1-7(a). Hassard v. State, 319 Ga. App. 708, 738 S.E.2d 293 (2013).

Same conduct not shown.

- Indictment was not barred by former prosecution since the predicate acts supporting the RICO violation alleged by the indictment in one county were not alleged by the indictment in the other county, and there was otherwise no evidence that the RICO prosecution in one county arose from the same conduct supporting the RICO charges filed against the defendant in the other county. Garrard v. State, 242 Ga. App. 189, 528 S.E.2d 273 (2000).

Although both indictments against the defendant alleged similar schemes to defraud lending institutions, double jeopardy protections under O.C.G.A. §§ 16-1-7(b),16-1-8(b) and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII did not bar the second prosecution; the indictments involved different properties, different coconspirators, different real estate transactions, and, for the most part, different lenders, and the fact that the two separate conspiracies may have overlapped in time and resulted in violations of the same criminal statutes was not determinative. Harrison v. State, 282 Ga. App. 29, 637 S.E.2d 773 (2006).

Former Code 1933, § 26-506(b) requires one prosecution only if several crimes arise from same conduct. Ealey v. State, 139 Ga. App. 604, 229 S.E.2d 86 (1976).

When joint prosecution of multiple charges is mandatory.

- Prosecution of multiple charges together is mandatory where rules relating to venue permit and crimes are known to proper prosecuting officer. Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758 (1972).

State's option upon dismissal of one of several offenses prosecuted together under O.C.G.A.

§ 16-1-7(b). - When more than one offense arises out of same course of action and at same time, upon being faced with dismissal of one offense, state has option of taking appeal from action of trial court while withholding prosecution of other offense or offenses pending outcome of appeal, or alternatively of proceeding with prosecution of remaining offense. Electing to proceed with remaining offense or offenses bars the state from trying dismissed offense by virtue of doctrine of procedural double jeopardy. State v. Brittain, 147 Ga. App. 626, 249 S.E.2d 679 (1978).

Under former Code 1933, § 26-1801 (see now O.C.G.A. § 17-8-3), before the jury was impaneled, a nolle prosequi may be entered at the pleasure of the prosecutor. Singer v. State, 156 Ga. App. 416, 274 S.E.2d 612 (1980).

Indictment is not invalid merely because it includes two entirely separate and distinct crimes. Quarles v. State, 130 Ga. App. 756, 204 S.E.2d 467 (1974).

Including multiple counts in indictment based on same type of recurring conduct.

- Including multiple counts in indictment does not violate provisions of former Code 1933, § 26-506, even though state does not rely on same conduct to establish commission of offenses, but rather on same type of conduct, reoccurring in a number of instances. Steele v. State, 227 Ga. 653, 182 S.E.2d 475 (1971).

When modus operandi of perpetrator is so strikingly alike in different counts that totality of facts unerringly demonstrates and designates the defendant as the common perpetrator, the offenses may be joined, subject to the right of the defendant to severance in the interests of justice. Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981).

When defendant can be charged with separate, distinct offenses in same indictment.

- Defendant cannot be charged with separate and distinct offenses on same indictment unless they are of same nature, class or species, or arise out of or constitute but one transaction involving same conduct of accused. Fair v. State, 129 Ga. App. 565, 200 S.E.2d 296 (1973).

Impermissible consolidation of indictments is error requiring new trial in each case. Bradford v. State, 126 Ga. App. 688, 191 S.E.2d 545 (1972), overruled on other grounds, Smith v. State, 199 Ga. App. 410, 405 S.E.2d 107 (1991).

If defendant charged with multiple offenses arising from "same conduct" pleads guilty to certain of these offenses, the defendant may then raise a plea of bar against subsequent prosecutions arising from the same course of conduct where the state, through decision or default, has failed to prosecute all offenses together, provided that it was practicable to do so. State v. McCrary, 253 Ga. 747, 325 S.E.2d 151 (1985).

Prosecutor's knowledge of offenses.

- When there is no showing that all of the charges against a defendant were known to the proper prosecuting officer at the time a previous prosecution was commenced, a subsequent prosecution for other violations arising from the same occurrence is not barred by O.C.G.A. § 16-1-7(b) or by O.C.G.A. § 16-1-8(b). Webb v. State, 176 Ga. App. 576, 336 S.E.2d 838 (1985).

O.C.G.A. § 16-1-7(b), requiring that crimes arising out of the same conduct be prosecuted in a single prosecution, applies only with regard to such crimes as are actually known to the prosecuting officer actually handling the proceedings. A constructive knowledge standard is not employed. Baker v. State, 257 Ga. 567, 361 S.E.2d 808 (1987); Dickinson v. State, 191 Ga. App. 467, 382 S.E.2d 187 (1989); Price v. State, 206 Ga. App. 161, 424 S.E.2d 841 (1992); Bonner v. State, 249 Ga. App. 358, 548 S.E.2d 84 (2001).

Defendant may be prosecuted for more than one crime arising from the same conduct if the prosecuting officer actually handling the proceedings does not have actual knowledge of the multiple prosecutions. Farmer v. State, 184 Ga. App. 851, 363 S.E.2d 62 (1987); Hayles v. State, 188 Ga. App. 281, 372 S.E.2d 668 (1988); Cates v. State, 206 Ga. App. 694, 426 S.E.2d 576 (1992).

Knowledge means actual, not constructive, knowledge by the prosecuting officer. Sanders v. State, 188 Ga. App. 774, 374 S.E.2d 542, cert. denied, 188 Ga. App. 912, 371 S.E.2d 878 (1988).

Trial court's denial of defendant's plea of former jeopardy to preclude prosecution for controlled substances act violations was error, where the offense of driving without a license to which defendant pled guilty arose out of the same transaction, and all offenses were known to the prosecutor at the outset. Smith v. State, 190 Ga. App. 246, 378 S.E.2d 493, aff'd, 259 Ga. 352, 381 S.E.2d 37 (1989).

After the defendant pled guilty to giving a false name and address, obstruction of an officer, and driving on a suspended license following dismissal of earlier charges of theft of a motor vehicle, concealing the identity of a motor vehicle, and improper parking, offenses of theft and concealing the identity of a motor vehicle charged in a subsequent indictment did not arise from the same conduct as that of which defendant was convicted, but the offense of improper parking, also charged in the indictment, did arise from the same conduct and should have been dismissed since the prosecuting attorney had actual knowledge of all the crimes. Young v. State, 214 Ga. App. 585, 448 S.E.2d 477 (1994).

Defendant had the burden of showing that the proper prosecuting officer had actual knowledge of all of the charges against that defendant and since the defendant did not satisfy that fact by evidence, the trial court did not err in finding that the defendant failed to satisfy O.C.G.A. § 16-1-7(b) and denying defendant's motion in autrefois convict and plea in bar. Rowe v. State, 265 Ga. App. 809, 463 S.E.2d 21 (1995); Blackwell v. State, 232 Ga. App. 884, 502 S.E.2d 774 (1998).

Defendant was charged with speeding, driving under the influence of drugs, and endangering a child. Defendant pled nolo contendere to, and was sentenced on the speeding charge; therefore, the state was barred from prosecuting defendant for the other two charges which arose from the same conduct and of which the prosecutor had actual knowledge. Weaver v. State, 224 Ga. App. 243, 480 S.E.2d 286 (1997).

O.C.G.A. § 16-1-7(b) only applies to crimes which are "actually known" to the prosecuting officer; constructive knowledge by the prosecuting officer is not sufficient. Hill v. State, 234 Ga. App. 173, 507 S.E.2d 3 (1998).

Even if both a misdemeanor charge for theft by receiving and subsequent felony charge for that crime were for separate items seized by the same police officer from the same location at the same time, this alone would not be sufficient to invoke the bar of double jeopardy because defendant had the burden of showing that, when the misdemeanor prosecution was commenced, the solicitor general had actual knowledge of the felony charge. Honea v. State, 238 Ga. App. 135, 517 S.E.2d 841 (1999).

O.C.G.A. § 16-1-7 does not bar prosecution of other offenses unless the defendant affirmatively shows that the other crimes were actually known to the prosecutor handling the proceedings. Baker v. State, 251 Ga. App. 597, 554 S.E.2d 797 (2001).

After the defendant conceded that there was no prosecuting attorneys assigned to the DeKalb County Recorder's Court, and the presiding judge or arresting officer was not deemed the proper prosecuting officer, the defendant failed in the defendant's burden of showing that the proper prosecuting officer had actual knowledge of all the charges against the defendant. Simmons v. State, 263 Ga. App. 220, 587 S.E.2d 312 (2003).

State was prohibited by O.C.G.A. § 16-1-7(b) from adding new charges to the indictment because the charges in the previous two-count indictment were for different offenses than the ones the state added to the re-indictment, and all of the crimes were actually known to the prosecutor when the defendant commenced the first prosecution. Herrington v. State, 315 Ga. App. 101, 726 S.E.2d 625 (2012).

Defendant's procedural double jeopardy motion was properly denied because the disposition form was legally insufficient to show that the solicitor handling the defendant's guilty plea in state court actually knew that there were felony offenses arising out of the same conduct as the misdemeanor traffic offense as the disposition form simply listed the felony offenses and the date the defendant was initially detained; thus, the state could proceed with the state's prosecution of the defendant in superior court on the felony charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, and bribery. Sellers v. State, 332 Ga. App. 14, 770 S.E.2d 31 (2015), cert. denied, No. S15C1309, 2015 Ga. LEXIS 597 (Ga. 2015).

"Proper prosecuting officer" construed.

- Language of subsection (b) of this statute referring to proper prosecuting officer clearly means prosecuting attorney for state; that is, the district attorney or authorized assistants. Singer v. State, 156 Ga. App. 416, 274 S.E.2d 612 (1980).

District attorney, not the assistant district attorney who is actually responsible for the prosecution of the case, was the "proper prosecuting officer at the time of commencing the prosecution" within the meaning of O.C.G.A. § 16-1-7(b), since the district attorney's name on the accusation and the indictment was conclusive circumstantial evidence that the district attorney had actual knowledge of all the offenses arising from the same conduct and the pendency of both prosecutions against the accused but chose to proceed separately as to each. State v. Smith, 259 Ga. 352, 381 S.E.2d 37 (1989).

"Proper prosecuting officer," as that phrase is used in O.C.G.A. § 16-1-7(b), means the prosecuting attorney for the state, i.e., the district attorney or authorized assistants, including state court solicitors and their assistants, and the phrase was not meant to include the arresting officer. Zater v. State, 197 Ga. App. 648, 399 S.E.2d 222 (1990); Rowe v. State, 265 Ga. App. 809, 463 S.E.2d 21 (1995); Dodd v. State, 240 Ga. App. 48, 522 S.E.2d 538 (1999).

O.C.G.A. § 16-1-7(b) applies only to such crimes which are actually known to the prosecuting officer who is handling the proceedings. The defendant bears the burden of showing that further prosecution is barred by the previous prosecution, including a showing that the proper prosecuting attorney had actual knowledge of all the charges. Anderson v. State, 200 Ga. App. 530, 408 S.E.2d 829 (1991).

Appearance of the district attorney's name on both an accusation and indictment constitutes circumstantial evidence which conclusively establishes the district attorney's actual knowledge of the pendency of the prosecutions and of the offenses charged in each. Mack v. State, 249 Ga. App. 424, 547 S.E.2d 697 (2001).

Subsection (b) does not require exclusion of evidence of crimes not subject to prosecution.

- Although O.C.G.A. § 16-1-7(b) does require single prosecution of known crimes arising from same conduct, it does not contain exclusionary rule concerning evidence of crimes which are not subject to prosecution. Favors v. State, 149 Ga. App. 563, 254 S.E.2d 886 (1979).

2. Crimes Against the Person

Failure of prosecuting officials to include underlying felony charge in a murder indictment constitutes a statutory procedural bar to prosecution on the charge of felony murder, where the commission of the felony and the murder arise from the "same conduct." McCrary v. State, 254 Ga. 382, 329 S.E.2d 473 (1985).

After the defendant committed four distinct offenses (driving under the influence, reckless driving, fleeing to elude arrest, and aggravated assault) during a single continuous course of conduct in a single night, and these offenses were known to the prosecutor at the time of the prosecution in the probate court, at which time the court accepted guilty pleas to the two misdemeanor charges, the successive prosecution in the superior court for the felony charges was barred. McCrary v. State, 171 Ga. App. 585, 320 S.E.2d 567 (1984), aff'd, 253 Ga. 747, 325 S.E.2d 151 (1985); Hooker v. State, 240 Ga. App. 141, 522 S.E.2d 723 (1999).

Separate victims of obstruction of a law enforcement officer.

- Upon conviction of defendant of three counts of misdemeanor obstruction of a law enforcement officer, since there were three separate victims, the trial court did not err in treating the counts as discrete offenses for sentencing. Denny v. State, 222 Ga. App. 674, 475 S.E.2d 698 (1996).

Kidnapping with bodily injury in one county and murder in another county permitted separate prosecution.

- After the accused kidnapped the victim and inflicted bodily injury upon the victim in one county, and then abducted the victim to a second county in which the accused killed the victim, the two offenses were not within a single court's jurisdiction and could not be tried together; therefore, there was no procedural bar to subsequent prosecution for murder in the second county. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Offense of hijacking did not merge with defendant's armed robbery conviction for sentencing purposes. Dillard v. State, 223 Ga. App. 405, 477 S.E.2d 674 (1996).

When death occurs after conviction for aggravated assault.

- When criminal offense of murder was not yet complete because the victim had not died at time of aggravated assault conviction, subsequent prosecution for murder was not barred by express terms of former Code 1933, §§ 26-506(b) and 26-507(b) (see now O.C.G.A. §§ 16-1-7(b) and16-1-8(b)), because the crime of murder was not consummated when the former trial began. Lowe v. State, 240 Ga. 767, 242 S.E.2d 582 (1978).

Vehicular homicide prosecution not barred when victim died following traffic violation prosecutions.

- Prosecution for vehicular homicide was not barred against a defendant who, at prior proceedings, had been prosecuted for and pled guilty to other offenses arising from the same incident since, at the time of the earlier proceedings, the victim had not yet died. Herrera v. State, 175 Ga. App. 740, 334 S.E.2d 339 (1985).

Three deaths from one auto accident.

- Defendant could be sentenced on three counts of vehicular homicide although all three deaths resulted from one negligent act. Smith v. State, 164 Ga. App. 624, 298 S.E.2d 587 (1982).

Reckless driving and serious injury by vehicle offenses.

- Trial court did not err by failing to merge a reckless-driving charge into a serious-injury-by-vehicle charge because the two crimes were entirely separate and distinct, requiring a showing of different elements and based on the defendant's drunk driving of a four-wheeler ATV with a 10-year-old passenger, who was brain-damaged when the defendant clipped a tractor and flipped the ATV; the state used the evidence of the clipping of the tractor scoop, which caused the rollover and injury to the child, as the elements of the serious-injury-by-vehicle offense, which was separate from and sequential to the reckless-driving offense, which was premised on the defendant's intoxication. Croft v. State, 278 Ga. App. 107, 628 S.E.2d 144 (2006).

Multiple sex crimes against children.

- Trial court did not err in refusing to merge a charge of statutory rape with an incest charge, a charge of child molestation with that of aggravated child molestation, and charges of aggravated sodomy and aggravated child molestation. Those multiple offenses did not merge as a matter of fact or law; under the circumstances of the case, the same conduct was not being punished twice, nor was one act included in the other so as to proscribe the separate conviction and punishment for each act. Williams v. State, 195 Ga. App. 476, 394 S.E.2d 123 (1990).

Attempt to commit child molestation and enticing a child for indecent purposes.

- Trial court did not err in failing to merge the defendant's convictions for criminal attempt to commit child molestation and criminal attempt to entice a child for indecent purposes because to convict the defendant of criminal attempt to commit child molestation, the state had to prove that the defendant took a substantial step towards doing an immoral or indecent act to or with someone believed to be under the age of 16, and for purposes of convicting the defendant of criminal attempt to entice a child for indecent purposes, the state was not required to prove that the defendant was acting with an intent or desire to satisfy sexual desires. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).

Aggravated child molestation and simple sodomy.

- As defendant's conduct satisfied the elements of aggravated child molestation, the argument that defendant should have been sentenced for the lesser crime of simple sodomy was unavailing; the state was not required to prosecute only a lesser offense committed, but could prosecute the defendant under any or all of the statutes that fit defendant's conduct. Hunter v. State, 263 Ga. App. 747, 589 S.E.2d 306 (2003).

Aggravated assault and feticide.

- Defendant's convictions for aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2) and feticide in violation of O.C.G.A. § 16-5-80(a) did not merge for sentencing purposes because the victim of the aggravated assault was the defendant's girlfriend, while the victim of the feticide was the girlfriend's unborn child; the merger doctrine does not apply if each of the charged crimes was committed against a different victim. Carmichael v. State, 305 Ga. App. 651, 700 S.E.2d 650 (2010).

Aggravated assault and murder.

- Trial court erred by convicting the defendant of aggravated assault and an associated weapons possession conviction in addition to murder because, with regard to the stabbing death of the victim, there was no evidence of any interval, deliberate or otherwise, separating the infliction of the victim's non-fatal wounds from the infliction of the wounds that killed the victim. Reddings v. State, 292 Ga. 364, 738 S.E.2d 49 (2013).

Defendant's conviction for aggravated assault against one victim was properly not merged with the conviction for malice murder because aggravated assault was separated by a deliberate interval from malice murder as aggravated assault occurred when the defendant shot several times through the bedroom door, and malice murder occurred only after the victim fled into the bedroom closet, the defendant entered the room, and the victim came out to confront the defendant. Miller v. State, 305 Ga. 276, 824 S.E.2d 342 (2019).

Aggravated assault accounts should merge.

- Trial court erred in failing to merge two aggravated assault counts because there was no element of aggravated assault with a deadly weapon that was not contained in aggravated assault by discharging a weapon from a moving vehicle. Adkins v. State, 301 Ga. 153, 800 S.E.2d 341 (2017).

Felony murder and vehicular homicide.

- Defendant could be indicted for vehicular homicide under O.C.G.A. § 40-6-393 and felony murder during the commission of fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998).

Multiple felony murder convictions, only one person killed.

- Under O.C.G.A. § 16-1-7(a), it was improper to sentence defendant to two felony murder counts under O.C.G.A. § 16-5-1(c) because there was only one death involved. Rhodes v. State, 279 Ga. 587, 619 S.E.2d 659 (2005).

Consecutive sentence for crimes involving two victims proper.

- As a defendant was charged with the malice murder of two victims in different counts and was found guilty on each count, the defendant was properly sentenced separately on each count to run consecutively because the killing of different persons constituted separate crimes. Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010).

Aggravated assault with intent to rob and armed robbery.

- Because all of the facts used to prove the offense of aggravated assault with intent to rob were used up in proving the armed robbery, merger was required. Mercer v. State, 289 Ga. App. 606, 658 S.E.2d 173 (2008).

Defendant's conviction for aggravated assault with intent to rob the victim was vacated because it should have merged with the conviction for armed robbery of the same victim because the offenses were predicated on the same acts of violence and each did not require proof of a fact which the other did not since no additional violence was used against the victim. Colbert v. State, 345 Ga. App. 554, 813 S.E.2d 777 (2018).

Conviction of aggravated assault and armed robbery.

- Because: (1) different facts were used to prove an aggravated assault and an armed robbery, specifically, that the armed robbery was complete after the defendant laid a handgun on the counter in the convenience store, demanded that the victim open the register, and a codefendant took money from the a register; and (2) the separate offense of aggravated assault occurred when the defendant struck the victim in the head with the gun, the offenses did not merge as a matter of fact. Thus, the separate sentences imposed for each offense were upheld, and no double jeopardy violation occurred. Garibay v. State, 290 Ga. App. 385, 659 S.E.2d 775 (2008).

Joinder of battery and obstruction of officer charges was proper because evidence of defendant's conduct in leaving the scene of the battery was relevant and pertinent to the obstruction charge. McCracken v. State, 224 Ga. App. 356, 480 S.E.2d 361 (1997).

Felony murder and felony criminal attempt to possess cocaine.

- Separate judgment of conviction and sentence for criminal attempt to possess cocaine was vacated because after the jury found the defendant guilty of felony murder while in the commission of the felony of criminal attempt to possess cocaine, and also of the felony of criminal attempt to possess cocaine, the defendant was sentenced on each charge, but the defendant could not be sentenced on both felony murder and the underlying felony when found guilty of both. Sapp v. State, 290 Ga. 247, 719 S.E.2d 434 (2011).

Joinder of sexual offenses and solicitation for murder.

- When the defendant planned to murder a child so that the child could not testify about sexual offenses, it was not error to refuse to sever the sexual charges from a solicitation to commit murder charge; joinder was based upon a connected series of acts, and there was no indication that the jury was unable to apply the law intelligently as to each offense. Borders v. State, 285 Ga. App. 337, 646 S.E.2d 319 (2007), cert. denied, No. S07C1374, 2007 Ga. LEXIS 640 (Ga. 2007).

Conviction of aggravated assault and rape.

- After completing the act of forcible intercourse (rape), defendant drew a gun again, pulled back the hammer, and threatened to shoot both victims if the victim's did not obey the defendant's further commands, this second drawing of the deadly weapon was subsequent to, and separate from, the completed offense of rape against the first victim; thus, the evidence regarding the use of force during the incident was not "used up" in the offense of rape, and the defendant could properly be convicted of aggravated assault. Ellis v. State, 181 Ga. App. 826, 354 S.E.2d 15 (1987).

Kidnapping, rape, robbery and aggravated sodomy.

- Kidnapping charge was not improperly joined with the charges of rape, robbery and aggravated sodomy where the charges were part of a continuing criminal enterprise. Smith v. State, 214 Ga. App. 631, 448 S.E.2d 906 (1994).

Convictions for aggravated battery, family violence, and family violence battery arising out of same conduct.

- Charges under both O.C.G.A. § 16-5-24(a) and (h) (aggravated battery, family violence) and O.C.G.A. § 16-5-23.1(a), (b), and (f) (family violence battery, substantial physical and visible bodily harm), which were not based on actions at different times or places or different injuries, violated a defendant's double jeopardy rights under O.C.G.A. § 16-1-7. Pierce v. State, 301 Ga. App. 167, 687 S.E.2d 185 (2009), cert. denied, No. S10C0549, 2010 Ga. LEXIS 244 (Ga. 2010).

Joinder of theft by taking with making harassing telephone calls and using telephone communication for indecent purposes.

- Trial court did not err in refusing to sever offenses for theft by taking and the telephone charges, because the evidence of each crime would be admissible in the trial of either crime if tried separately. Moss v. State, 245 Ga. App. 811, 538 S.E.2d 876 (2000).

Unrelated assaults.

- Defendant's plea to a charge arising from an earlier incident with a carpet cleaner did not preclude a prosecution for a later assault on the defendant's girlfriend because the crimes were separated in time, involved different victims, and did not arise from the same conduct; thus, O.C.G.A. § 16-1-7(b) did not require them to be brought in a single prosecution. Delph v. State, 279 Ga. App. 306, 630 S.E.2d 891 (2006).

Possession of a firearm by a convicted felon.

- Defendant was not entitled to a new jury on a trial of a possession of a firearm by a convicted felon charge as generally all charges arising out of the same conduct had to be tried in a single prosecution; although there were limited exceptions to the rule allowing, under proper circumstances, the bifurcation of a possession of a firearm by a convicted felon charge, the defendant was not entitled to a separate trial before a new jury on that charge. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Merger for concealing death.

- Appellant's merger claims cannot simply be deemed waived on appeal following the entry of a guilty plea, even if the appellant fails to raise the issue, and four of the appellant's five convictions for concealing the death of the appellant's girlfriend merged since only one violation occurred. Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013).

Aggravated battery charges did not merge.

- When the defendant was charged with two counts of aggravated battery, the aggravated battery counts did not merge because the evidence was sufficient for a jury to determine that the batteries occurred on separate occasions rather than during a single transaction as the expert physician testified that after the blow to the infant's head that fractured the infant's skull and caused the infant's brain to swell, the infant would not have acted normally, and both parents testified that the infant was acting normally until the day they finally took the infant to the emergency room; and the defendant testified that the marks appeared on the infant before the defendant dropped the baby out the front door onto the ground. Busby v. State, 332 Ga. App. 646, 774 S.E.2d 717 (2015).

3. Crimes Against Property

Hijacking and armed robbery.

- Defendant's convictions of hijacking a motor vehicle and armed robbery were properly entered, despite defendant's contention that the state used the same facts to establish both offenses and that defendant should have only been convicted of and sentenced for one of the offenses, as: (1) hijacking a motor vehicle was considered a separate offense and did not merge with any other offense; (2) O.C.G.A. § 16-5-44.1 superseded the double jeopardy provisions of O.C.G.A. § 16-1-7 in motor vehicle hijacking cases; (3) O.C.G.A. § 16-5-44.1(d) did not violate the prohibition against double jeopardy, since the double jeopardy clause of the Georgia Constitution did not prohibit additional punishment for a separate offense which the legislature deemed to warrant separate sanction; and (4) defendant failed to offer any evidence in support of defendant's allegation that O.C.G.A. § 16-5-44.1(d) otherwise violated defendant's double jeopardy rights. Holman v. State, 272 Ga. App. 890, 614 S.E.2d 124 (2005).

Arson and cruelty to animals.

- Defendant was properly convicted for arson in the second degree and cruelty to animals, where the essential elements of each of the crimes differed, and the state carried its burden of proving the distinct elements of each crime. Motes v. State, 189 Ga. App. 430, 375 S.E.2d 893 (1988).

Burglary and armed robbery.

- There is no prohibition against a defendant's being convicted of both burglary and a completed criminal offense, such as armed robbery, after gaining entry into the dwelling, as each offense has distinct elements. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991).

No merger of armed robbery and aggravated assault charges where defendant threatened victim with knife and took the victim's money and then at knifepoint forced the victim into the bushes, made the victim lie down, straddled the victim and threatened to stab the victim. Rhodes v. State, 221 Ga. App. 792, 470 S.E.2d 790 (1996).

Merger of aggravated assault count with armed robbery.

- Because a defendant's convictions for armed robbery (O.C.G.A. § 16-8-41(a)) and aggravated assault (O.C.G.A. § 16-5-21(a)) were based on the same conduct - the defendant's pointing a gun at the victim with the intent to rob the victim - merger was required. Therefore, the sentence for aggravated assault was vacated. Reed v. State, 293 Ga. App. 479, 668 S.E.2d 1 (2008).

Merger of aggravated assault with felony murder conviction.

- Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the felony murder conviction, it should have merged with the felony murder conviction for sentencing purposes. Allen v. State, 307 Ga. 707, 838 S.E.2d 301 (2020).

Two counts of burglary based on one entry should have been merged.

- Because the defendant's one entry into the victim's house was committed with a dual intent to commit theft and aggravated assault, the trial court should not have imposed two separate sentences for the two burglary charges based on the two intents, and instead should have merged the burglary counts for sentencing. However, merger of an armed robbery charge was properly rejected. Ward v. State, 339 Ga. App. 621, 794 S.E.2d 246 (2016).

Merger of theft by taking, conversion, and theft by deception.

- After the defendant was convicted on 52 counts related to the defendant's theft of more than $600,000 as the operator of a Ponzi scheme, although the trial court did not err in failing to merge the defendant's convictions for theft by conversion and theft by deception into the defendant's convictions for theft by taking, because theft by taking proscribed certain criminal conduct generally, while theft by conversion and theft by deception were specific crimes, the defendant's convictions for theft by taking merged into the defendant's convictions for theft by conversion and theft by deception; thus, the defendant's sentences for theft by taking were vacated, and the case was remanded to the trial court for resentencing. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017), cert. dismissed, No. S18C0491, 2018 Ga. LEXIS 316 (Ga. 2018).

Crimes not of same nature, class, or species.

- Charges of burglary, criminal attempt to steal motor vehicle and possession of firearm during commission of crime were not of same nature, class, or species under former Code 1933, § 26-506. Fair v. State, 129 Ga. App. 565, 200 S.E.2d 296 (1973).

Successive prosecution for financial identity fraud.

- Trial court correctly rejected the defendant's plea in bar and denied defendant's motion in autrefois convict because the defendant did not show that defendant's prosecution for two counts of financial identity fraud under O.C.G.A. § 16-9-121 was barred as an impermissible successive prosecution for the same conduct in another county by defendant's earlier conviction in that county of 33 counts of financial identity fraud. Summers v. State, 263 Ga. App. 338, 587 S.E.2d 768 (2003).

Robbery by intimidation and theft by taking.

- Defendant's convictions for robbery by intimidation and theft by taking did not violate the defendant's double jeopardy rights because the defendant obtained the money by intimidation when the defendant threatened to stab the victim, whereas the defendant obtained the victim's car without the use of intimidation. Southwell v. State, 320 Ga. App. 763, 740 S.E.2d 725 (2013).

4. Application to Other Crimes

Possession of firearm during felony.

- O.C.G.A. § 16-1-7(a), the statutory double jeopardy provision, is superseded by the provision in O.C.G.A. § 16-11-106 that offense of possession of a firearm during commission of a felony "shall be considered a separate offense." Miller v. State, 250 Ga. 436, 298 S.E.2d 509 (1983).

Offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery, so that the defendant can be convicted of both without statutory or constitutional prohibition. Brown v. State, 199 Ga. App. 773, 406 S.E.2d 248 (1991).

Charge requiring evidence of prior felony.

- It was proper under O.C.G.A. § 16-1-7 and former O.C.G.A. § 24-9-20 (see now O.C.G.A. § 24-5-506) to try a firearms possession charge, which requires evidence of a prior felony conviction, together with a marijuana and a burglary charge. State v. Santerfeit, 163 Ga. App. 627, 295 S.E.2d 756 (1982).

When the defendant, who was arrested for speeding and driving under the influence, sought to dispose of the speeding charge by paying a fine of $99.00 to the clerk of the probate court, the defendant was not subjected to any former "prosecution" within the meaning of O.C.G.A. §§ 16-1-7 and16-1-8(b), and the trial court did not err in denying defendant's plea in bar to the charge of driving under the influence. Collins v. State, 177 Ga. App. 758, 341 S.E.2d 288 (1986).

Trial counsel was not ineffective as the defendant's guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge's oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant's plea in bar. Hantz v. State, 337 Ga. App. 675, 788 S.E.2d 567 (2016).

After defendant charged with traffic violations and disorderly conduct pled guilty to latter, trial court's denial of defendant's plea of former jeopardy to preclude prosecution for the traffic violations was not in error. The offense of disorderly conduct for which defendant was earlier tried did not arise from the same transaction as the five traffic offenses with which defendant was also charged, as they were completed at a different time and at different locations; therefore, prosecution for the traffic offenses did not constitute double jeopardy for defendant. Boyette v. State, 172 Ga. App. 683, 324 S.E.2d 540 (1984).

DUI offense.

- Driving under the influence (DUI) offense did not arise from the same transaction as other offenses of obstructing an officer, interfering with government property, and carrying a concealed weapon, where the conduct giving rise to the other offenses did not occur until after defendant had been arrested for DUI by one officer and placed in the custody of a different officer for transportation to the sheriff's office. Harrell v. State, 196 Ga. App. 101, 395 S.E.2d 598 (1990).

Given that a charge of DUI served as the predicate act underlying a charge of serious injury by vehicle, thus constituting a lesser included crime of serious injury by vehicle, O.C.G.A. § 16-1-7(a) barred conviction of and punishment for both; hence, in light of this incongruence, defendant's DUI conviction and sentence, as well as the sentence for serious injury by vehicle, were vacated. Hannah v. State, 280 Ga. App. 230, 633 S.E.2d 800 (2006).

Prosecutions for DUI and possession of cocaine.

- After the defendant was first charged with driving under the influence and later charged with possession of cocaine, together with the passenger in the vehicle, as a codefendant, the court would reject the contention that the assistant solicitor who handled the defendant's plea proceeding with regard to the first charge was the prosecuting officer "actually handling the proceedings" and that, since this attorney did not review the file before taking the plea, it could not be said that the "prosecuting officer actually handling the case" had actual knowledge of the alleged drug violation. Hill v. State, 234 Ga. App. 173, 507 S.E.2d 3 (1998).

Speeding in both city and county as one transaction.

- When a city policeman began chasing defendant's speeding vehicle within the city limits, and a county police officer joined in the chase after the defendant left the incorporated area and entered the county, all of the offenses charged by both officers arose out of one course of conduct, i.e., there was only one transaction. Anderson v. State, 200 Ga. App. 530, 408 S.E.2d 829 (1991).

Offenses under uniform traffic citation.

- Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006).

Denial of plea of former jeopardy held error.

- After the defendant was charged with driving with a suspended license and three counts of violation of the controlled substances act, the trial court's denial of the defendant's plea of former jeopardy to preclude prosecution for controlled substances act violations was in error since the offense of driving without a license to which the defendant pled guilty arose out of the same transaction and all offenses were known to the prosecutor at the outset. Smith v. State, 190 Ga. App. 246, 378 S.E.2d 493, aff'd, 259 Ga. 352, 381 S.E.2d 37 (1989).

Rape and child molestation.

- An accused may be prosecuted for both rape and child molestation based on the same conduct, but he may not be convicted of both. Mackey v. State, 235 Ga. App. 209, 509 S.E.2d 68 (1998).

Statutory rape and child molestation.

- Trial court properly denied the defendant's motion to dismiss charges alleging statutory rape and child molestation on jeopardy grounds as double jeopardy did not preclude the state from prosecuting defendant for both offenses, although the same conduct formed the basis for both charges. Moreover, because no corroboration was required for child molestation, the jury logically could have found, and in fact did find, the defendant guilty of molesting the victim by having sex with that victim, despite the jury's not guilty verdict on statutory rape. Maynard v. State, 290 Ga. App. 403, 659 S.E.2d 831 (2008).

Possession with intent to distribute and sale of cocaine.

- When the defendant was found guilty of possession with intent to distribute cocaine and, in a second trial, convicted of the sale of cocaine, the second trial violated procedural double jeopardy since the defendant was under continuous observation from the time of defendant's sale of cocaine through defendant's journey to a convenience store since the defendant was arrested and found to be in possession of more of the same type of drugs. Morgan v. State, 220 Ga. App. 198, 469 S.E.2d 340 (1996).

Charges of conspiracy to import marijuana and trafficking in marijuana could be joined for trial, over objection, since the charges arose from the same conduct. Bridges v. State, 195 Ga. App. 851, 395 S.E.2d 30 (1990).

False swearing and malicious prosecution.

- Defendant's convictions for false swearing under O.C.G.A. § 16-10-71, proven by evidence that defendant made false statements in an affidavit seeking an involuntary commitment order for the victim, and malicious confinement under O.C.G.A. § 16-5-43, supported by proof apart from the execution of the false affidavit, did not merge as a matter of fact. Washington v. State, 271 Ga. App. 764, 610 S.E.2d 692 (2005).

Unauthorized offers to sell.

- Because defendant's argument on appeal was a challenge to defendant's convictions for making 91 unauthorized offers to sell recorded material under O.C.G.A. § 16-8-60(b), and because an O.C.G.A. § 16-1-7(a) motion to correct or modify an illegal sentence was not an appropriate remedy to attack a conviction in a criminal case, the defendant did not properly challenge the convictions; defendant's only recourse was through habeas corpus proceedings. Rogers v. State, 314 Ga. App. 398, 724 S.E.2d 417 (2012).

Drug related offenses.

- Trial court did not err in failing to merge the counts for attempt to manufacture methamphetamine and possession of ephedrine and pseudoephedrine because the jury could have found different conduct to support each offense; the jury could have found that the defendant assembled methamphetamine ingredients with intent to manufacture and that the defendant possessed some part of those ingredients after altering the ingredients. Taylor v. State, 320 Ga. App. 596, 740 S.E.2d 327 (2013).

Because the defendant's convictions for attempt to sell oxycodone and possession with intent to distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700, 786 S.E.2d 245 (2016).

Misdemeanor and felony offenses not arising from same conduct.

- Trial court properly denied the defendant's plea in bar based on double jeopardy as the misdemeanor offenses of criminal trespass, open container, and concealed weapon charges and the felony-related offenses of rape, aggravated sodomy, and making a false statement during the sexual assault investigation did not arise from the same conduct because, although the offenses occurred on the same date and close in time, the offenses took place in different locations as the rape and aggravated sodomy occurred inside the victim's apartment and the misdemeanor offenses occurred outside a separate building in the apartment complex and the state could establish each set of offenses without proving the other. Jackson v. State, 336 Ga. App. 140, 784 S.E.2d 7 (2016).

Severance

1. In General

Criteria for severance apply in capital cases.

- Criteria for severance of offenses are the same in cases in which the death penalty is sought as in other cases. Terry v. State, 259 Ga. 165, 377 S.E.2d 837 (1989).

When joinder is based on similarity of offenses, defendant is entitled to severance.

- Whenever two or more offenses have been joined for trial solely on the ground that the offenses are of the same or similar character, the defendant shall have the right under O.C.G.A. § 16-1-7(c) to severance of the offenses. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981); Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981); Cooper v. State, 253 Ga. 736, 325 S.E.2d 137 (1985).

When severance is discretionary.

- Severance of charges of several crimes arising from same conduct under former Code 1933, § 26-506(c) lies within sound discretion of trial judge since facts in each case are likely to be unique. Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975).

When the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial court since the facts in each case are likely to be unique. Bailey v. State, 157 Ga. App. 222, 276 S.E.2d 843 (1981).

When the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, the court in interests of justice may order that one or more of such charges be tried separately. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).

When there is a valid reason for joinder other than similarity of the offense, severance becomes discretionary with the trial court. Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981).

When the joinder is based upon the same conduct or on a series of acts connected together, severance lies within the sound discretion of the trial judge. Fluker v. State, 174 Ga. App. 890, 332 S.E.2d 34 (1985).

When the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial judge. Smith v. State, 199 Ga. App. 410, 405 S.E.2d 107 (1991).

Complexity of evidence as affecting severance.

- When each offense charged is connected to other crimes as part of a larger scheme and evidence presented is not of such complexity as to hinder the jury from applying the law intelligently to each offense, severance is a matter of discretion with the court. Guthrie v. State, 147 Ga. App. 351, 248 S.E.2d 714 (1978).

When all three alleged offenses are part of the same conduct within the meaning of that term as used in O.C.G.A. § 16-1-7 and evidence is not of such complexity as to hinder the jury from being able to apply the law of the case intelligently to each alleged offense, the trial court does not abuse the court's discretion in denying defendant's motion to sever. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).

Ability to distinguish evidence as factor.

- When the crimes joined are not of a similar kind, on a motion to sever one charge the court should consider whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense. Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988).

Balancing interests of accused with those of state.

- Former Code 1933, § 26-506(c) showed that on question of severance trial court should have discretion and that interests of accused are to be balanced with interests of state. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).

Severance made in interest of justice involves balancing of interests of accused with interests of state. Fowler v. State, 155 Ga. App. 76, 270 S.E.2d 297 (1980).

Interests of justice to be considered.

- Only test under former Code 1933, § 26-506(c) was whether the interests of justice will be served by separate trials. The judge may order charges tried separately but the judge was not required to do so, if in the judge's opinion, the interests of justice will not be served thereby. Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758 (1972); Slocum v. State, 230 Ga. 762, 199 S.E.2d 202 (1973); Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973).

Where same conduct of accused can establish more than one crime, judge may order charges tried separately but the judge is not required to do so if, in the judge's opinion, the interests of justice will not be served thereby. Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971).

"Interest of justice" criterion is discretionary with trial judge. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).

It is merely permissive for court to order separate trials in interest of justice. Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970), sentence vacated, 408 U.S. 938, 92 S. Ct. 2868, 33 L. Ed. 2d 758 (1972).

Prejudice to defendant as factor.

- Underlying consideration under former Code 1933, § 26-506(c) concerned the degree of prejudice which might result from joint disposition. Wilson v. State, 245 Ga. 49, 262 S.E.2d 810 (1980).

Former Code 1933, § 26-506 did not require that motions to sever be in writing. Wigley v. State, 140 Ga. App. 145, 230 S.E.2d 108 (1976).

2. Application

Facts justifying refusal of motion for severance.

- Judge may refuse motion for severance of trial of multiple charges where crimes alleged were part of a continuous transaction conducted over a relatively short time, and from the nature of the entire transaction, it would be almost impossible to present to jury evidence of one of the crimes without also permitting evidence of the other. Stewart v. State, 239 Ga. 588, 238 S.E.2d 540 (1977).

When all the offenses formed a series of acts closely connected in time, involving common witnesses and evidence, refusal to sever the offenses was not an abuse of discretion. Lane v. State, 210 Ga. App. 738, 437 S.E.2d 479 (1993).

What constitutes single scheme or plan.

- When separate crimes are committed in order to accomplish a single criminal purpose, the crimes are said to constitute parts of a single scheme or plan, even if the crimes are somewhat removed from one another in terms of time and place. Bailey v. State, 157 Ga. App. 222, 276 S.E.2d 843 (1981).

Escape may, under certain circumstances, be one of a series of acts connected together and joined in a multi-count indictment. Carter v. State, 155 Ga. App. 840, 273 S.E.2d 417 (1980).

Scheme encompassing burglary, motor vehicle theft and armed robbery.

- When scheme and purpose to obtain narcotics which encompassed burglary, motor vehicle theft and armed robbery within span of a few hours is clearly shown by evidence, interests of justice would not be served by ordering separate trials. Goughf v. State, 232 Ga. 178, 205 S.E.2d 844 (1974).

Robbery by force and robbery by sudden snatching.

- Trial court did not err in denying defendant's motion to sever charges for robbery by force and robbery by sudden snatching. Smith v. State, 225 Ga. App. 738, 484 S.E.2d 773 (1997).

When overruling of motion to sever is abuse of discretion.

- When separate crimes do not arise out of same conduct, do not involve same victims or witnesses, and evidence of one would not be admissible on trial of the other, judgment of trial court overruling motion to sever is error constituting an abuse of discretion. Booker v. State, 231 Ga. 598, 203 S.E.2d 194 (1974).

Trial court did not abuse discretion in denying motion to sever count alleging possession of a firearm by a convicted felon from counts alleging murder and aggravated assault. Pope v. State, 168 Ga. App. 846, 310 S.E.2d 575 (1983).

When the defendant and others robbed and fatally shot the first victim, who was making a night deposit, then robbed a bartender at gunpoint a month later, it was not error to deny the defendant's motion for severance of the crimes; the crimes involved the same core group of participants committing armed robberies with similar characteristics over a short period of time. Simmons v. State, 282 Ga. 183, 646 S.E.2d 55 (2007).

Severance of one count in indictment not allowed.

- When codefendants A and B were charged with aggravated assault, armed robbery, and criminal damage to property and B was also charged with aggravated assault on B's spouse in the same indictment, a motion by A to sever the latter charge against B from the rest of the charges in the indictment was properly denied; A's rights in regard to that count were limited to a motion to sever A's trial under O.C.G.A. § 17-8-4. Durden v. State, 219 Ga. App. 732, 466 S.E.2d 641 (1995).

Failure to sever count not error. Boyd v. State, 168 Ga. App. 246, 308 S.E.2d 626 (1983).

Trial court did not err in denying defendant's motion for severance of the counts alleging operation a motor vehicle after revocation of defendant's driver's license as an habitual violator and leaving the scene of an accident. Spradlin v. State, 174 Ga. App. 658, 331 S.E.2d 50 (1985).

When the purpose of joinder was not to bolster any witness' credibility, but there was a rational connection shown by the evidence between the battery, terroristic threats, and damage to property on the one hand, and defendant's possession of marijuana on the other, the denial of the severance motion as to the marijuana charge was not an abuse of discretion. Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988).

Trial court properly denied a defendant's motion to sever two armed robbery charges; in both incidents, which occurred only three days apart, the defendant began a conversation with the victim at a public facility, took the victim's truck keys and held the keys until the victim gave the defendant money, and canvassed the victim's truck for other items to steal. Davis v. State, 287 Ga. App. 410, 651 S.E.2d 518 (2007).

Failure of the trial court to exercise discretion on the issue of severance of charges of possession of a firearm during commission of a crime and the subject drug charge, and the absence of any waiver by defendant of double jeopardy violated defendant's procedural double jeopardy protections. Asberry v. State, 221 Ga. App. 809, 472 S.E.2d 562 (1996).

3. Sentencing

Sentences for offenses not considered.

- Statutes pertaining to lesser included offenses and multiple prosecutions for the same conduct do not purport to make any offense a greater offense, either as a matter of law or fact, solely because violation thereof mandates or otherwise results in the imposition of a greater sentence, or to make any offense a lesser included offense merely because a lesser sentence was statutorily authorized for its violation. Hancock v. State, 210 Ga. App. 528, 437 S.E.2d 610 (1993).

Suspension of a driver's license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy. Martinez v. State, 221 Ga. App. 483, 471 S.E.2d 551 (1996).

Defendant's obligation to object to sentencing.

- It is incumbent upon a defendant to make an objection at sentencing or to make a proper motion at sentencing if sentenced in violation of O.C.G.A. § 16-1-7. Jackson v. State, 254 Ga. App. 562, 562 S.E.2d 847 (2002).

Sentences for both aggravated assault and rape did not violate the defendant's protection against double jeopardy, where even if defendant had departed from the victim's apartment prior to the forcible sexual penetration of her, he still would have been guilty of the aggravated assault, because he had pointed a pistol at the victim through the window and held it while he led her from room to room before the rape. Taylor v. State, 177 Ga. App. 624, 340 S.E.2d 263 (1986).

No merger of underlying felony into vacated conviction.

- Underlying felony does not merge as a matter of law into vacated felony murder conviction so that the trial court did not err given the extant malice murder conviction, in imposing separate sentences for aggravated assault and possession of a firearm. Malcolm v. State, 263 Ga. 369, 434 S.E.2d 479 (1993).

When defendant was convicted of felony murder and vehicular homicide with the underlying offense of driving under the influence, and vehicular homicide was vacated as a matter of law, the underlying traffic offense did not merge into the felony murder, and defendant was properly sentenced for driving under the influence. Diamond v. State, 267 Ga. 249, 477 S.E.2d 562 (1996).

Convictions merged for sentencing.

- Georgia statutory law prohibited multiple sentences upon multiple convictions for the same conduct; thus, defendant's convictions for aggravated assault with intent to rob and possession of a firearm during the commission of that aggravated assault merged into the armed robbery conviction for sentencing purposes. Cutkelvin v. State, 258 Ga. App. 691, 574 S.E.2d 883 (2002).

Harmless error in failure to merge.

- Defendant's convictions for aggravated assault and aggravated battery should have been merged but the error was harmless because the defendant would still have been sentenced for aggravated battery. Lonon v. State, 348 Ga. App. 527, 823 S.E.2d 842 (2019).

Sentencing on two lesser offenses without specifying which served as foundation.

- Trial court erred in sentencing the defendant on the lesser offenses of reckless driving and driving under the influence, and also sentencing defendant on the greater offense of homicide by vehicle in the first degree, which included the lesser offenses. Had the jury revealed which of the lesser offenses served as the foundation for the homicide verdict, a sentence on the remaining lesser offense might have been appropriate, but as such information did not appear in the record, the defendant could not be sentenced for either of the lesser included offenses of violation of O.C.G.A. §§ 40-6-390 and40-6-391. McNabb v. State, 180 Ga. App. 723, 350 S.E.2d 314 (1986).

Felony murder and aggravated assault sentence.

- Defendant charged with two counts of felony murder consisting of underlying felonies involving aggravated assault and being a first offender probationer in possession of a firearm could not be sentenced on both felony murder convictions, as the act of killing a single victim meant that defendant could be sentenced on either count of felony murder but not both. Harris v. State, 274 Ga. 835, 561 S.E.2d 73 (2002).

Felony murder and malice murder.

- Defendant could not be sentenced for both malice and felony murder under O.C.G.A. § 16-1-7; accordingly, the separate judgment of conviction and sentence for felony murder had to be vacated. Nix v. State, 280 Ga. 141, 625 S.E.2d 746 (2006).

Armed robbery and aggravated assault.

- O.C.G.A. § 17-10-7(d) did not require the imposition of concurrent sentences for a defendant's convictions of armed robbery and aggravated assault. O.C.G.A. § 16-1-7 authorized separate sentences for the two crimes charged in the same prosecution because the crimes were not included offenses. Redden v. State, 294 Ga. App. 879, 670 S.E.2d 552 (2008).

Separate sentences for drug trafficking offenses.

- Trial court did not err under O.C.G.A. §§ 16-1-6(2) and16-1-7(a)(1) by sentencing the defendant separately for trafficking in methamphetamine, in violation of O.C.G.A. § 16-13-31, and trafficking in ecstasy, in violation of O.C.G.A. § 16-13-31.1, when the substance which was found in the defendant's vehicle tested positive for both methamphetamine and ecstasy as there was no evidence that chemical compounds or elements were shared between the drugs. Ahmad v. State, 312 Ga. App. 703, 719 S.E.2d 563 (2011).

Merger of offenses for sentencing proper.

- Defendant was not improperly convicted of more than one offense arising from the same conduct when, at sentencing, those offenses were merged into one offense. Haugland v. State, 253 Ga. App. 423, 560 S.E.2d 50 (2002).

Although the state used up its evidence to prove defendant's guilt on one count to prove another, causing the offenses to merge as a matter of fact, any error in sentencing was harmless, because defendant received no separate sentence. Mitchell v. State, 255 Ga. App. 585, 565 S.E.2d 889 (2002).

Only one sentence when only one victim.

- Trial court erred in sentencing the defendant to separate terms of life imprisonment for malice murder and felony murder since there was only one victim. Ward v. State, 292 Ga. 637, 740 S.E.2d 112 (2013).

Although the prescriptions that the defendant picked up on one occasion were purportedly for two different patients, the defendant's single act of going to the pharmacy to pick up the prescriptions on that date was the same conduct for the purpose of deciding whether the offenses merged; thus, Counts 1 and 2 of obtaining a controlled substance by fraud merged, and the trial court erred in imposing separate sentences as to those counts. Hopkins v. State, 328 Ga. App. 844, 761 S.E.2d 896 (2014).

State required to make election when charging defendant with multiple counts of same crime.

- Trial court erred in sentencing the defendant on two additional counts of incest because the acts alleged in Counts 5 and 6 were the same and both counts averred the exact dates of the offenses; thus, the state was required to make an election when the state charged the defendant with multiple counts of the same crime. Jones v. State, 333 Ga. App. 796, 777 S.E.2d 480 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Separate prosecutions for municipal and state law prosecutions.

- An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 269 et seq.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, § 12 et seq. 22A C.J.S. Criminal Procedure and Rights of the Accused, 656 et seq., 666 et seq.

ALR.

- Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626.

Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636.

Conviction or acquittal upon charge of murder of, or assault upon, one person as bar to prosecution for like offense against another person at the same time, 20 A.L.R. 341; 113 A.L.R. 222.

Forgery of names of several individuals to the same instrument as more than one offense, 33 A.L.R. 562.

Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564; 172 A.L.R. 1053.

Continuous transaction constituting a complete offense in each county or district as constituting more than one offense, 73 A.L.R. 1511.

Acquittal or conviction of assault and battery as bar to prosecution for rape, or assault with intent to commit rape, based on same transaction, 78 A.L.R. 1213.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery of another person committed at the same time, 51 A.L.R.3d 693.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.

Double jeopardy: various acts of weapons violations as separate or continuing offense, 80 A.L.R.4th 631.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - Modern view, 97 A.L.R.5th 201.

What constitutes accused's consent to court's discharge of jury or to grant of motion for mistrial which will constitute waiver of former jeopardy plea - silence or failure to object or protest, 103 A.L.R.6th 137.

16-1-8. When prosecution barred by former prosecution.

  1. A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution:
    1. Resulted in either a conviction or an acquittal; or
    2. Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.
  2. A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution:
    1. Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began; or
    2. Was terminated improperly and the subsequent prosecution is for a crime of which the accused could have been convicted if the former prosecution had not been terminated improperly.
  3. A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.
  4. A prosecution is not barred within the meaning of this Code section if:
    1. The former prosecution was before a court which lacked jurisdiction over the accused or the crime; or
    2. Subsequent proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.
  5. Termination under any of the following circumstances is not improper:
    1. The accused consents to the termination or waives by motion to dismiss or other affirmative action his right to object to the termination; or
    2. The trial court finds that the termination is necessary because:
      1. It is physically impossible to proceed with the trial;
      2. Prejudicial conduct in or out of the courtroom makes it impossible to proceed with the trial without injustice to the defendant;
      3. The jury is unable to agree upon a verdict; or
      4. False statements of a juror on voir dire prevent a fair trial.

(Code 1933, § 26-507, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1982, p. 3, § 16.)

Cross references.

- Multiple jeopardy, U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII.

Law reviews.

- For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For comment, "Grady v. Corbin: An Unsuccessful Effort to Define Same Offense," see 25 Ga. L. Rev. 143 (1990).

JUDICIAL DECISIONS

General Consideration

Constitutionality of subsection (c).

- Statutes such as former Code 1933, § 26-507(c) (see now O.C.G.A. § 16-1-8(c)) can be enacted by the General Assembly without contravening Ga. Const. 1976, Art. VI, Sec. IV, Para. I (see now Ga. Const. 1983, Art. VI, Sec. IV, Para. I), which endowed the superior courts with exclusive jurisdiction over trial of capital felonies. Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976).

History of section.

- See Marchman v. State, 132 Ga. App. 677, 209 S.E.2d 88 (1974).

Rationale behind bar to successive prosecutions is to prevent harassment of accused. State v. White, 145 Ga. App. 730, 244 S.E.2d 579 (1978).

First policy underlying double jeopardy bar is to prevent harassment of accused by successive prosecutions or threat of successive prosecutions. State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974), overruled on other grounds Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006); Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975).

Former Code 1933, § 26-507 prevents accused from being unduly harassed or threatened by successive criminal prosecutions. Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976).

Construed with federal and state constitutions.

- Former Code 1933, § 26-507 comports with dimensions of double jeopardy clause of federal and state Constitutions. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).

Former 1968 Criminal Code extended double jeopardy proscription beyond those contained in the United States and Georgia Constitutions. Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1974).

Double jeopardy questions are controlled by O.C.G.A. §§ 16-1-6,16-1-7, and 16-1-8. - Former 1968 Criminal Code (see now O.C.G.A. T. 16) extended proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions. Therefore, questions of double jeopardy in Georgia must now be determined under proscriptions combined in former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8). State v. Warren, 133 Ga. App. 793, 213 S.E.2d 53 (1975).

Former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) provided an expanded statutory test for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Questions of double jeopardy in Georgia must be determined under the expanded statutory proscriptions found in O.C.G.A. §§ 16-1-6,16-1-7, and16-1-8, which place limitations upon multiple prosecutions, convictions, and punishments for the same criminal conduct. Stone v. State, 166 Ga. App. 245, 304 S.E.2d 94 (1983).

Jeopardy did not attach because there was no adjudication of guilt.

- Because the defendant's alleged mistake of fact regarding a charge of possession of a firearm by a convicted felon required consideration of facts extrinsic to the accusation to be decided by a jury, the trial court erred in dismissing the charge, sua sponte; moreover, as such dismissal was not an adjudication of guilt, the state could appeal from the same without violating the defendant's double jeopardy rights. State v. Henderson, 283 Ga. App. 111, 640 S.E.2d 686 (2006).

Former Code 1933, §§ 26-505 through 26-507 (see now O.C.G.A. §§ 16-1-6 through16-1-8) distinguish between two aspects of double jeopardy: first, limitations upon multiple prosecutions for crimes arising from same conduct, referred to as procedural bar of double jeopardy; and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes, referred to as substantive bar of double jeopardy. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Former Code 1933, § 26-507 was a procedural statute as distinguished from a jurisdictional statute. Dorsey v. State, 237 Ga. 876, 230 S.E.2d 307 (1976).

"Previous prosecution" construed.

- To constitute a "previous prosecution" within the meaning of O.C.G.A. §§ 16-1-7(b) and16-1-8(b), the defendant previously must have been "placed in jeopardy" as to at least one of the offenses arising out of the same conduct as the offense for which the state is subsequently attempting to prosecute the defendant. State v. Smith, 185 Ga. App. 694, 365 S.E.2d 846 (1988).

When defendant is placed in jeopardy.

- Defendant is placed in jeopardy when, in a court of competent jurisdiction with a sufficient indictment, defendant has been arraigned, has pled and a jury has been impaneled and sworn. Turner v. State, 152 Ga. App. 354, 262 S.E.2d 618 (1979).

Plea of guilty on an indictment or complaint with the plea's entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of O.C.G.A. §§ 16-1-7(b) and16-1-8(b). State v. Smith, 185 Ga. App. 694, 365 S.E.2d 846 (1988).

Double jeopardy was violated when the trial court improperly terminated defendant's first trial after the first witness was sworn and by resetting the trial before a different judge. Puplampu v. State, 257 Ga. App. 5, 570 S.E.2d 83 (2002).

No jeopardy if trial had not commenced.

- When the transcript in superior court on the plaintiff's plea in bar indicated that the probate judge who presided over the initial proceeding was hearing motions when the witnesses were sworn, rather than commencing trial, the superior court did not err in finding that the trial never commenced, and jeopardy had not attached. Henderson v. State, 236 Ga. App. 72, 510 S.E.2d 879 (1999).

Based on testimony provided by a court reporter that a jury was never sworn prior to the day the defendant's trial started, jeopardy never attached. Hall v. State, 282 Ga. App. 562, 639 S.E.2d 341 (2006).

Because jury was never administered oath, the jury's verdict acquitting the defendant of malice murder but convicting him of other charges was a nullity and defendant's double jeopardy plea on the malice murder charge was properly denied. Spencer v. State, 281 Ga. 533, 640 S.E.2d 267, cert. denied, 551 U.S. 1103, 127 S. Ct. 2914, 168 L. Ed. 2d 243 (2007).

"Postponement" construed.

- Postponement, like a continuance, is not a "termination" of the proceedings within the meaning of O.C.G.A. § 16-1-8(a) if the trial is resumed before the same jury. Knight v. State, 197 Ga. App. 250, 398 S.E.2d 202 (1990).

Procedural double jeopardy prevents successive prosecutions for the same offense; it does not prevent prosecutions for offenses which are separate and similar to a prior prosecuted offense. Loden v. State, 199 Ga. App. 683, 406 S.E.2d 103 (1991).

Procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct. Teal v. State, 203 Ga. App. 440, 417 S.E.2d 666, cert. denied, 203 Ga. App. 908, 417 S.E.2d 666 (1992).

Defendant's federal prosecution was not a bar to defendant's state prosecution since the defendant's federal convictions required proof that the defendant had counterfeited currency, but that proof was not required in the state charges of trafficking in cocaine and possession of cocaine with intent to distribute. McAlister v. State, 236 Ga. App. 609, 512 S.E.2d 53 (1999).

Each ground for bar sufficient.

- O.C.G.A. § 16-1-8(b)(1) provides three distinct grounds for barring a subsequent prosecution where the former prosecution resulted in a conviction or acquittal, and any of the three is sufficient to establish the bar. McCannon v. State, 252 Ga. 515, 315 S.E.2d 413 (1984).

Multiple accusations and indictments not barred.

- Trial court properly rejected the defendant's argument that the state was collaterally estopped from pursuing the robbery charges as the court found that the alleged armed robbery was completed before the vehicle was taken and the defendant presented no evidence that the robbery charges were known to the prosecuting attorney when the earlier prosecution for theft by receiving the vehicle was brought. Holt v. State, 339 Ga. App. 230, 793 S.E.2d 516 (2016).

Trial on subsequent indictment not barred by earlier indictments without trial.

- Since the jury was never impaneled and sworn to hear the trial of defendant on the original accusation, defendant was never placed in jeopardy as to that accusation, and the defendant did not face a repeated prosecution simply because the defendant was to be tried on a subsequent indictment. Cochran v. State, 176 Ga. App. 58, 335 S.E.2d 165 (1985).

Pendency of a prior indictment for the same offense based on the same facts for which the defendant was arraigned on and entered a plea did not place the defendant in jeopardy, and the defendant did not face a repeated prosecution simply because of being tried on a subsequent indictment. Hubbard v. State, 225 Ga. App. 154, 483 S.E.2d 115 (1997).

Jeopardy did not attach to court proceedings which occurred before a proper accusation was filed. Roberts v. State, 171 Ga. App. 131, 319 S.E.2d 42 (1984).

Suspension of a driver's license at an administrative hearing was not punishment, nor was the hearing a prosecution for the purposes of double jeopardy, thus, a subsequent criminal prosecution for driving under the influence was not barred. Nolen v. State, 218 Ga. App. 819, 463 S.E.2d 504 (1995), cert. denied, 518 U.S. 1018, 116 S. Ct. 2550, 135 L. Ed. 2d 1070 (1996); Martinez v. State, 221 Ga. App. 483, 471 S.E.2d 551 (1996).

Payment of the fee required for reinstatement of a driver's license after it was suspended following an arrest for driving under the influence was not punishment and did not bar a subsequent prosecution for driving under the influence. Thompson v. State, 229 Ga. App. 526, 494 S.E.2d 306 (1997); Morgan v. State, 229 Ga. App. 861, 495 S.E.2d 138 (1998).

Violation of plea agreement.

- Defendant relinquished defendant's double jeopardy rights when defendant failed to testify truthfully at the trial of defendant's codefendant per the negotiated plea agreement. A defendant can not use the double jeopardy clause to shield defendant from the consequences of failure to live up to an agreement with the prosecutor. Brown v. State, 261 Ga. App. 115, 582 S.E.2d 13 (2003).

Waiver of double jeopardy defense.

- Although the procedural bar against double jeopardy can be waived by failure to assert it in writing prior to trial, the failure to file a written plea of former jeopardy prior to trial will not defeat an accused's right to be free of multiple convictions for the criminal act. McClure v. State, 179 Ga. App. 245, 345 S.E.2d 922 (1986).

Waiver of right to plead former jeopardy.

- When the defendant failed to assert a plea of former jeopardy before the defendant's case was called for retrial, the defendant waived the right to such plea based on any abuse of discretion in declaring a mistrial at the first trial. Ramirez v. State, 217 Ga. App. 120, 456 S.E.2d 657 (1995).

Abandonment of statutory double jeopardy protections meant constitutional protections only remained.

- Defendant raised the state constitutional provision and O.C.G.A. §§ 16-1-7 and16-1-8 in the defendant's plea of former jeopardy; however, the defendant expressly abandoned the statutory grounds at the hearing. By choosing that procedure, defendant actually relied upon the minimum constitutional protections against double jeopardy and chose to forego the additional protections provided by Georgia statutory law; thus, the trial court erred in applying Georgia statutory law in the instant case. Garrett v. State, 306 Ga. App. 429, 702 S.E.2d 470 (2010).

When the first jury hung, additional charges may not be brought as penalty.

- When the first trial results in a hung jury, the defendant is not to be penalized for the state's failure to obtain a conviction by the addition of new charges at the second trial. Curry v. State, 248 Ga. 183, 281 S.E.2d 604 (1981).

Juvenile proceedings.

- While the constitutional protections against double jeopardy apply to juvenile proceedings, the additional and expanded statutory protections afforded by O.C.G.A. § 16-1-8(a)(2) do not rise to the level of "those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial." In re S.L.H., 205 Ga. App. 278, 422 S.E.2d 43, cert. denied, 205 Ga. App. 900, 422 S.E.2d 43 (1992).

Effect of failure to prosecute.

- While O.C.G.A. § 16-1-7(b) requires prosecution of a crime and that crime is not prosecuted, subsequent prosecution is barred because that crime is one "with which the accused should have been charged on the former prosecution" under O.C.G.A. § 16-1-8(1)(b). McCannon v. State, 252 Ga. 515, 315 S.E.2d 413 (1984).

Superseding indictment.

- When a defendant was originally indicted under O.C.G.A. § 16-8-60(a), but was later indicted under § 16-8-60(b) instead, the superseding indictment did not subject the defendant to double jeopardy; no jeopardy ever attached to the first indictment on which the trial court entered an order of nolle prosequi. Hayward-El v. State, 284 Ga. App. 125, 643 S.E.2d 242 (2007).

Refiling appropriate where action was dismissed without prejudice.

- When the trial court's dismissal for "want of prosecution" was without prejudice, the state's refiling of the accusation was appropriate. State v. Roca, 203 Ga. App. 267, 416 S.E.2d 836 (1992).

Forfeiture proceedings not a bar to prosecution.

- Double jeopardy did not attach to bar prosecution of defendant on state drug charges following federal civil forfeiture proceedings because defendant's failure to contest the forfeiture meant defendant was not placed in jeopardy in those proceedings and, also, Georgia's constitutional and statutory provisions did not bar the prosecution because they apply only to criminal proceedings, not civil proceedings. Waye v. State, 219 Ga. App. 22, 464 S.E.2d 19 (1995).

Civil forfeiture proceeding in a drug case was not a criminal prosecution for purposes of double jeopardy. Murphy v. State, 219 Ga. App. 474, 465 S.E.2d 497 (1995), aff'd, 267 Ga. 120, 475 S.E.2d 907 (1996).

Civil federal forfeiture action was neither punishment nor criminal for purposes of the double jeopardy clause. Battista v. State, 223 Ga. App. 369, 477 S.E.2d 665 (1996).

Motion to suppress heard after jury is impaneled and sworn.

- In defendant's motion to suppress, which defendant insisted on raising at trial and failed to ask for a hearing before trial, although the state would have been wise not to suggest impaneling and swearing the jury beforehand, defendant readily consented to this arrangement, thus defendant's contention that the state had no right to this appeal because the motion to suppress was heard after the jury was impaneled and sworn is incorrect. State v. Smalls, 203 Ga. App. 283, 416 S.E.2d 531 (1992).

Effect of trial court's lack of jurisdiction after jury has begun deliberations.

- In a prosecution for shoplifting and while the jury was deliberating, the state court trial judge was informed that defendant had three prior convictions for shoplifting and dismissed the case for lack of jurisdiction; thus, the trial was a nullity and double jeopardy would not prevent a retrial. State v. Sterling, 244 Ga. App. 328, 535 S.E.2d 329 (2000).

Double jeopardy plea denied where defendant impliedly consented to grant of mistrial.

- Although defense counsel had an opportunity to raise an objection after the court announced its intention to excuse the jurors and before the jurors were returned to the courtroom, counsel failed to do so; therefore, the trial court was authorized to find that defendant, through counsel, impliedly consented to the grant of a mistrial and the judge's plea of double jeopardy made during trial was properly denied. Howell v. State, 266 Ga. App. 480, 597 S.E.2d 546 (2004).

Denial of the defendant's plea in bar on double jeopardy grounds was directly appealable. Etienne v. State, 298 Ga. App. 149, 679 S.E.2d 375 (2009).

Trial court's refusal to permit the defendant to cross-examine the prosecutor at a hearing on the defendant's plea of double jeopardy amounted to legal error, as such not only amounted to a violation of the defendant's right to confrontation, but also foreclosed the opportunity for the defendant to prove whether the prosecutor intended to goad the defendant into moving for a mistrial. Wright v. State, 284 Ga. App. 169, 643 S.E.2d 538 (2007).

Cited in Rowland v. State, 124 Ga. App. 494, 184 S.E.2d 494 (1971); Jones v. Anderson, 404 F. Supp. 182 (S.D. Ga. 1974); Bennett v. State, 136 Ga. App. 806, 222 S.E.2d 207 (1975); Parham v. State, 137 Ga. App. 498, 224 S.E.2d 485 (1976); Daughtrey v. State, 138 Ga. App. 504, 226 S.E.2d 773 (1976); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976); Barner v. State, 139 Ga. App. 50, 227 S.E.2d 874 (1976); Shaw v. State, 239 Ga. 690, 238 S.E.2d 434 (1977); State v. Bolton, 144 Ga. App. 797, 242 S.E.2d 378 (1978); State v. Gilder, 145 Ga. App. 731, 245 S.E.2d 3 (1978); Barber v. State, 146 Ga. App. 523, 246 S.E.2d 510 (1978); Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978); Morrow v. State, 147 Ga. App. 395, 249 S.E.2d 110 (1978); Dowdy v. State, 148 Ga. App. 498, 251 S.E.2d 571 (1978); State v. Gilmer, 154 Ga. App. 673, 270 S.E.2d 25 (1980); Chatham v. State, 155 Ga. App. 154, 270 S.E.2d 274 (1980); Horne v. State, 155 Ga. App. 851, 273 S.E.2d 193 (1980); Pate v. State, 158 Ga. App. 395, 280 S.E.2d 414 (1981); Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981); Waddell v. State, 160 Ga. App. 743, 288 S.E.2d 90 (1981); State v. Abdi, 162 Ga. App. 20, 288 S.E.2d 772 (1982); Buford v. State, 162 Ga. App. 498, 291 S.E.2d 256 (1982); Bryant v. State, 163 Ga. App. 872, 296 S.E.2d 168 (1982); Benford v. State, 164 Ga. App. 733, 298 S.E.2d 39 (1982); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); Blount v. State, 169 Ga. App. 215, 312 S.E.2d 197 (1983); Zolun v. State, 169 Ga. App. 707, 314 S.E.2d 672 (1984); Welch v. State, 172 Ga. App. 476, 323 S.E.2d 622 (1984); B.J.L. v. State, 173 Ga. App. 317, 326 S.E.2d 519 (1985); Howard v. State, 173 Ga. App. 346, 326 S.E.2d 546 (1985); State v. Martin, 173 Ga. App. 370, 326 S.E.2d 558 (1985); McCrary v. State, 254 Ga. 282, 329 S.E.2d 473 (1985); Waters v. State, 177 Ga. App. 374, 339 S.E.2d 608 (1985); Lemon v. State, 177 Ga. App. 744, 341 S.E.2d 236 (1986); Hogan v. State, 178 Ga. App. 534, 343 S.E.2d 770 (1986); Clarington v. State, 178 Ga. App. 663, 344 S.E.2d 485 (1986); State v. Whitlock, 179 Ga. App. 460, 346 S.E.2d 896 (1986); Thomas v. State, 185 Ga. App. 500, 364 S.E.2d 630 (1988); Williams v. State, 258 Ga. 305, 369 S.E.2d 232 (1988); Price v. State, 187 Ga. App. 239, 370 S.E.2d 6 (1988); Armfield v. State, 259 Ga. 43, 376 S.E.2d 369 (1989); Alexander v. State, 192 Ga. App. 211, 384 S.E.2d 436 (1989); Paquin v. Town of Tyrone, 261 Ga. 418, 405 S.E.2d 497 (1991); Wilson v. State, 199 Ga. App. 900, 406 S.E.2d 293 (1991); Moss v. State, 200 Ga. App. 253, 407 S.E.2d 477 (1991); Merrill v. State, 201 Ga. App. 671, 411 S.E.2d 750 (1991); Duncan v. State, 206 Ga. App. 407, 425 S.E.2d 307 (1992); Moore v. State, 207 Ga. App. 673, 428 S.E.2d 678 (1993); Jackett v. State, 209 Ga. App. 112, 432 S.E.2d 586 (1993); Andrew v. State, 216 Ga. App. 819, 456 S.E.2d 227 (1995); State v. Lane, 218 Ga. App. 126, 460 S.E.2d 550 (1995); Bair v. State, 250 Ga. App. 226, 551 S.E.2d 84 (2001); Lackes v. State, 274 Ga. 297, 553 S.E.2d 582 (2001); State v. Heggs, 252 Ga. App. 865, 558 S.E.2d 41 (2001); Tremelling v. State, 263 Ga. App. 418, 587 S.E.2d 785 (2003); Usher v. State, 290 Ga. App. 710, 659 S.E.2d 920 (2008); Evans v. State, 293 Ga. App. 371, 667 S.E.2d 183 (2008); Strickland v. State, 300 Ga. App. 898, 686 S.E.2d 486 (2009); Gibson v. State, 319 Ga. App. 627, 737 S.E.2d 728 (2013); State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014).

Offenses Arising from Same Conduct

Effect of guilty plea to some, but not all, of multiple offenses.

- If defendant charged with multiple offenses arising from "same conduct" pleads guilty to certain of these offenses, the defendant may then raise a plea of bar against subsequent prosecutions arising from the same course of conduct where the state, through decision or default, has failed to prosecute all offenses together, provided that it was practicable to do so. State v. McCrary, 253 Ga. 747, 325 S.E.2d 151 (1985).

Defendant was charged with speeding, driving under the influence of drugs, and endangering a child. Defendant pled nolo contendere to, and was sentenced on the speeding charge; therefore, the state was barred from prosecuting defendant for the other two charges which arose from the same conduct and of which the prosecutor had actual knowledge. Weaver v. State, 224 Ga. App. 243, 480 S.E.2d 286 (1997).

Trial court erred in granting the defendant's plea in bar on the ground of procedural double jeopardy because the defendant failed to demonstrate actual knowledge of all the pending charges on the part of the proper prosecuting officer as the defendant did not establish the identity of the prosecuting officer, if any, at the defendant's guilty plea in recorder's court; the trial court's deputy clerk testified that no prosecutor was assigned to the traffic docket on which the defendant's expired tag charge was mistakenly entered; and the defendant did not establish that any prosecuting officer in the recorder's court was aware of all the pending charges. State v. Hill, 333 Ga. App. 785, 777 S.E.2d 265 (2015).

Prior plea agreement with defendant barred reindictment.

- Although the trial court correctly found that the defendant's subsequent prosecution for kidnapping in Fulton County was not barred on statutory double jeopardy grounds because there had been no conviction or acquittal in the former prosecution of that charge in Clayton County, the state was barred from reindicting the defendant based on the state's prior plea agreement with the defendant; thus, the defendant's plea in bar and motion to dismiss the Fulton County charges was improperly denied. Arnold v. State, 352 Ga. App. 777, 835 S.E.2d 759 (2019).

Separate prosecutions for greater and included offenses.

- O.C.G.A. § 16-1-8(b) governs cases in which the state brought separate prosecutions for a greater and included offense in violation of O.C.G.A. § 16-1-7(b). State v. LeMay, 186 Ga. App. 146, 367 S.E.2d 61 (1988).

Legal effect of severance.

- Severance not equivalent to finding that crimes did not arise out of same transaction or occurrence. Lindsey v. State, 234 Ga. 874, 218 S.E.2d 585 (1975).

Determining number of offenses when same act violates two statutes.

- When same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one for purposes of the double jeopardy clause of the Fifth Amendment is whether each provision requires proof of a fact which the other does not. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).

State's option upon dismissal of one of several offenses arising from same course of action.

- When more than one offense arises out of same course of action and at same time, upon being faced with dismissal of one offense, the state has the option of taking the appeal from action of the trial court while withholding prosecution of other offense or offenses pending outcome of appeal, or alternatively of proceeding with prosecution of remaining offense. Electing to proceed with remaining offense or offenses bars state from trying dismissed offense by virtue of doctrine of procedural double jeopardy. State v. Brittain, 147 Ga. App. 626, 249 S.E.2d 679 (1978).

Bifurcated trial.

- Defendant's double jeopardy rights were not barred by holding a bifurcated trial as requested and trying defendant first on a malice murder charge, and then in a separate, second phase on a felony murder charge, as the malice murder proceeding did not involve a former prosecution as required for attachment of double jeopardy principles; rather, the bifurcation of the trial meant the malice murder and felony murder charges were tried at separate phases of the same proceeding. Jones v. State, 276 Ga. 663, 581 S.E.2d 546 (2003).

Multiple accusations and indictments.

- Even assuming arguendo that the defendant's position that O.C.G.A. § 40-6-395 set out two distinct offenses, wilful failure to stop and fleeing and eluding a police officer, the defendant was tried, first in a bench trial and again on remand after an appeal, on an accusation charging the defendant with fleeing and eluding an officer and was found guilty and sentenced both times for fleeing and eluding; hence, because the defendant was not tried on the offense of wilful failure to stop, the defendant's contention that double jeopardy considerations prohibited a jury trial on that charge, was moot. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).

Although both indictments against the defendant alleged similar schemes to defraud lending institutions, double jeopardy protections under O.C.G.A. §§ 16-1-7(b),16-1-8(b) and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII did not bar the second prosecution; the indictments involved different properties, different coconspirators, different real estate transactions, and, for the most part, different lenders, and the fact that the two separate conspiracies may have overlapped in time and resulted in violations of the same criminal statutes was not determinative. Harrison v. State, 282 Ga. App. 29, 637 S.E.2d 773 (2006).

Because no evidence showed that the information concerning the defendant was known to the proper prosecuting officer in Gwinnett County, and because no basis otherwise existed for a charge of conspiracy to traffic based on what officers recovered in the search of the defendant's home, the appeals court refused to state that the defendant could have been convicted of conspiracy to traffic methamphetamine in Gwinnett County, or that Gwinnett County should have charged the defendant with this crime; hence, under these circumstances, the Dawson County indictment was not barred under O.C.G.A. §§ 16-1-6(b)(1) and16-1-7(b). Bradford v. State, 283 Ga. App. 75, 640 S.E.2d 630 (2006).

Drug possession.

- Trial court did not err when the court granted the defendant's plea in bar as to the second accusation for possession of Xanax because the state had charged the defendant with the identical crime of possession of an unspecified amount of Xanax on a prior date in two accusations, the second of which was brought after the defendant had pled guilty to the first. State v. Pruiett, 324 Ga. App. 789, 751 S.E.2d 579 (2013).

Trial court erred by granting the defendant's plea in bar as to the second accusation's charges for possession of methamphetamine, clonazepam, and marijuana because the defendant could not have been convicted of possession of those drugs in a former prosecution, which involved only Xanax. State v. Pruiett, 324 Ga. App. 789, 751 S.E.2d 579 (2013).

Possession of illegal drug is crime separate and distinct from illegal sale of that same substance. Morgan v. State, 168 Ga. App. 310, 308 S.E.2d 583 (1983).

Conspiracy to import cocaine not lesser included offense of possession of cocaine.

- When the crime charged in Florida was the conspiracy to import cocaine into a customs district of the United States, and the substantive crime charged in Georgia was the actual and knowing possession of more than 400 grams of cocaine, the conspiracy charge and conviction in Florida was not a lesser included offense to the crime charged in Georgia. Brown v. State, 181 Ga. App. 795, 354 S.E.2d 3 (1987).

Felony murder charge predicated on manufacturing meth barred by federal charge.

- Defendant's federal charge of attempt to manufacture meth did not require proof of facts additional to those required in the state case of felony murder predicated on manufacturing meth, meeting the elements of O.C.G.A. § 16-1-8(c) (statutory double jeopardy); the state's charges of manufacturing meth and felony murder were barred. Calloway v. State, 303 Ga. 48, 810 S.E.2d 105 (2018).

Requirement of concurrent jurisdiction met.

- Threshold requirement of concurrent jurisdiction was met in the defendant's state prosecution because the Georgia crimes of manufacturing, delivering, or selling a controlled substance and attempt, O.C.G.A. §§ 16-13-30(a) and16-13-33, were counterparts to the defendant's federal convictions under 21 U.S.C. §§ 841(b)(1)(C) and 846. Calloway v. State, 303 Ga. 48, 810 S.E.2d 105 (2018).

Underlying felony is same offense as felony murder for double jeopardy purposes.

- As felony murder is defined under Georgia law, underlying felony is a lesser included offense of felony murder and thus the same offense for double jeopardy purposes. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Once state tried and convicted petitioner for kidnapping, it was barred from prosecuting petitioner for felony murder only if the underlying felony upon which that prosecution was based was that same kidnapping. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Malice murder and kidnapping not same offense for double jeopardy purposes even though involving same transaction and considerably overlapping each other factually. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Dual federal and state prosecutions not barred.

- Federal prosecution for carjacking was not a former jeopardy bar to state prosecutions for carjacking, felony murder, armed robbery, and kidnapping with bodily injury, since the facts necessary to prove the federal charge were different from those necessary to prove the state charges. Torres v. State, 270 Ga. 79, 508 S.E.2d 171 (1998).

Circumstances established the exception to O.C.G.A. § 16-1-8(c) bar to state prosecution after a federal conviction based on the same conduct, because defendant's conviction for conspiracy in federal court required proof of defendant's knowing and voluntary participation in an unlawful agreement to possess and distribute methamphetamine, whereas the Georgia crimes required proof of the possession alleged in the indictments, and, in the case of trafficking methamphetamine, proof of possession of 28 grams or more. Moser v. State, 246 Ga. App. 268, 538 S.E.2d 904 (2000).

State prosecution of a drug offense arising out of the same conduct prosecuted in federal court and pled upon by defendant was not barred under O.C.G.A. § 16-1-8(c), as the federal case was dismissed after the state action was filed, and thus a final judgment was never entered. Thorpe v. State, 251 Ga. App. 334, 553 S.E.2d 171 (2001).

Trial court did not err in denying defendant's motion to dismiss the state charge of possession of a firearm during the commission of a felony based on a double jeopardy argument made pursuant to O.C.G.A. § 16-1-8(c), as the state's prosecution was not barred due to defendant's acquittal in federal district court on a related charge, and since the state's later prosecution of defendant required proof of an element not required in the federal prosecution. Scott v. State, 250 Ga. App. 870, 553 S.E.2d 276 (2001).

Trial court did not err in denying the defendant's motion in autrefois convict/plea in bar because the federal and state prosecutions required proof of a fact that the other did not as the defendant's federal conviction for conspiracy to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance required the agreement of two or more persons to commit a criminal act, and the state trafficking charge did not require proof of an agreement between two or more people to commit a criminal act, and required proof of the possession of the cocaine. Stembridge v. State, 331 Ga. App. 199, 770 S.E.2d 285 (2015).

Prosecution on state and federal charges of murder and kidnapping.

- Since the facts necessary to prove the federal charges of kidnapping and interstate travel with intent to commit murder for extortion are different from the facts necessary to prove the Georgia charges of murder and aggravated assault, there was no violation of Georgia's statutes barring multiple prosecutions, O.C.G.A. §§ 16-1-7 and16-1-8, nor the constitutional prohibition against double jeopardy, when the defendants were prosecuted in federal and state courts for all of the above offenses. Satterfield v. State, 256 Ga. 593, 351 S.E.2d 625 (1987).

Reindictment and reprosecution under O.C.G.A. § 16-9-1 barred by prior prosecution under O.C.G.A. § 16-13-43. - If O.C.G.A. § 16-13-43 was the exclusive statute to be applied in a given case, O.C.G.A. § 16-9-1 still generally proscribes part of the same conduct, and any attempt to reindict and reprosecute would be barred by a plea of former jeopardy under O.C.G.A. § 16-1-8. State v. O'Neal, 156 Ga. App. 384, 274 S.E.2d 575 (1980).

Reindictment proper when judgment of conviction vacated.

- Trial court did not adjudge the defendant not guilty, but vacated a judgment of conviction because the offense of enticing a child for indecent purposes was not a lesser-included offense of child molestation. Thus, O.C.G.A. § 16-1-8(d) did not prevent the state from reindicting the defendant for child molestation. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).

When victim dies after aggravated assault conviction, subsequent prosecution for murder not barred.

- When criminal offense of murder was not yet complete because the victim had not died at the time of the aggravated assault conviction, the subsequent prosecution for murder was not barred by express terms of former Code 1933, § 26-506(b) or § 26-507(b) (see now O.C.G.A. § 16-1-7(b) or O.C.G.A. § 16-1-8(b)), because the crime of murder was not consummated when the former trial began. Lowe v. State, 240 Ga. 767, 242 S.E.2d 582 (1978).

Conviction of lesser crime does not bar retrial upon reversal of conviction of greater crime.

- When there is a conviction of two crimes in a single prosecution, one of which is included in the other and defendant obtains reversal of the major crime for lack of jurisdiction remaining conviction of the lesser crime does not bar retrial on major crime. In the event that the defendant is then convicted on retrial for major crime, invalidation of defendant's conviction of the lesser included offenses for the same conduct would be authorized in appropriate proceedings. Keener v. State, 238 Ga. 7, 230 S.E.2d 846 (1976), cert. denied, 433 U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977).

Felony prosecution not barred by prior plea of guilty to traffic offense.

- Defendant's entry of a plea of guilty to a traffic code violation did not bar prosecution for felony charges arising out of defendant's stop for the traffic violation, where it would have been unreasonable to impute the knowledge of one prosecuting officer to another, since two entirely separate prosecuting officers were involved and defense counsel had deliberately set out to exploit the situation by seeking expeditious disposition of the traffic violation. Powe v. State, 181 Ga. App. 429, 352 S.E.2d 783 (1986).

Subsequent prosecution of defendant for robbery after defendant pled guilty in traffic court to fleeing to elude did not violate O.C.G.A. § 16-1-8 since the offenses involved wholly different elements and facts and defendant could not have been prosecuted in traffic court for the felony charge of robbery. Blackwell v. State, 230 Ga. App. 611, 496 S.E.2d 922 (1998).

Defendant's procedural double jeopardy motion was properly denied because the disposition form was legally insufficient to show that the solicitor handling the defendant's guilty plea in state court actually knew that there were felony offenses arising out of the same conduct as the misdemeanor traffic offense as the disposition form simply listed the felony offenses and the date the defendant was initially detained; thus, the state could proceed with the state's prosecution of the defendant in superior court on the felony charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, and bribery. Sellers v. State, 332 Ga. App. 14, 770 S.E.2d 31 (2015), cert. denied, No. S15C1309, 2015 Ga. LEXIS 597 (Ga. 2015).

Statutory rape and child molestation.

- Trial court properly denied the defendant's motion to dismiss charges alleging statutory rape and child molestation on jeopardy grounds, as double jeopardy did not preclude the state from prosecuting defendant for both offenses, although the same conduct formed the basis for both charges. Moreover, because no corroboration was required for child molestation, the jury logically could have found, and in fact did find, the defendant guilty of molesting the victim by having sex with that victim, despite the jury's not guilty verdict on statutory rape. Maynard v. State, 290 Ga. App. 403, 659 S.E.2d 831 (2008).

Independent prosecutions of armed robbery and motor vehicle theft.

- Offense of armed robbery and that of theft of a motor vehicle do not necessarily arise from the same conduct, and independent prosecutions for each offense will not necessarily implicate the law's prohibition against placing defendant in double jeopardy or subjecting defendant to "successive" or "multiple" prosecutions. Smith v. State, 173 Ga. App. 728, 327 S.E.2d 839 (1985).

Assault and criminal damage to property not barred by original traffic offenses.

- Since the defendant could not have been convicted for aggravated assault and criminal damage to property under prior traffic offenses and each prosecution required proof of facts not required on the other, the prosecution for assault and criminal damage was not barred. Cates v. State, 206 Ga. App. 694, 426 S.E.2d 576 (1992).

When the defendant committed four distinct offenses (driving under the influence, reckless driving, fleeing to elude arrest, and aggravated assault) during a single continuous course of conduct in a single night, and these offenses were known to the prosecutor at the time of the prosecution in the probate court, at which time the court accepted guilty pleas to the two misdemeanor charges, the successive prosecution in the superior court for the felony charges was barred. McCrary v. State, 171 Ga. App. 585, 320 S.E.2d 567 (1984), aff'd, 253 Ga. 747, 325 S.E.2d 151 (1985); Hooker v. State, 240 Ga. App. 141, 522 S.E.2d 723 (1999).

When defendant, who was arrested for speeding and driving under the influence, sought to dispose of the speeding charge by paying a fine of $99.00 to the clerk of the probate court, defendant was not subjected to any former "prosecution" within the meaning of O.C.G.A. §§ 16-1-7(b) and16-1-8(b) and the trial court did not err in denying defendant's plea in bar to the charge of driving under the influence. Collins v. State, 177 Ga. App. 758, 341 S.E.2d 288 (1986).

Trial counsel was not ineffective as the defendant's guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge's oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant's plea in bar. Hantz v. State, 337 Ga. App. 675, 788 S.E.2d 567 (2016).

Separate proceedings on traffic-related offenses and controlled substances offenses.

- When defendant was arrested for various traffic-related offenses following an accident and the officer investigating the accident found evidence of controlled substance violations, a separate prosecution of the traffic offenses after prosecution for the controlled substance offenses was not barred by double jeopardy since the offenses involved different acts and occurred on different dates and in different locations. State v. Steien, 214 Ga. App. 345, 447 S.E.2d 701 (1994).

Subsequent prosecution for driving under the influence not barred.

- When the defendant was charged with two occurrences on different dates of driving while intoxicated, the fact that the second charge was pending when the defendant pled to the first does not prohibit prosecution for the second charge. Grogan v. State, 179 Ga. App. 300, 346 S.E.2d 378 (1986).

Convictions for various traffic offenses did not bar subsequent prosecution for theft by receiving stolen property, i.e., a motorcycle, where the only connection between the theft charge and the traffic offenses was the fact that defendant committed the traffic offenses with the stolen vehicle. Grant v. State, 180 Ga. App. 742, 350 S.E.2d 582 (1986), cert. denied, 481 U.S. 1006, 107 S. Ct. 1630, 95 L. Ed. 2d 203 (1987).

Multiple felony convictions not related to separate traffic violations.

- Felony charges against a defendant, which included armed robbery, hijacking a motor vehicle, kidnapping, and possessing a firearm during the commission of a crime, did not require proof of the same elements involved in the traffic violations for which the defendant was convicted of in a different court, therefore, the felony convictions imposed against the defendant did not violate the defendant's right against double jeopardy. Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007).

Serious injury by vehicle prosecution barred as defendant pled guilty to failure to maintain lane.

- Under O.C.G.A. §§ 16-1-7(b) and16-1-8, double jeopardy protection barred the defendant's prosecution for, inter alia, serious injury by vehicle because the defendant had earlier pled guilty in magistrate's court to failure to maintain a lane arising out of the same accident; both charges could have been tried in the superior court, and it was apparent from the record that the prosecuting officer knew that the defendant had been charged with both offenses. When the defendant appeared in court initially, both charges were pending, and the magistrate court judge bound over the serious injury by vehicle charge. Etienne v. State, 298 Ga. App. 149, 679 S.E.2d 375 (2009).

Theft by deception prosecution barred.

- Prosecution of theft by deception was barred as either was based on the same conduct which formed the basis of defendant's earlier prosecution for theft by deception or based on conduct stemming from the same transaction which formed the basis of defendant's earlier prosecution. Gentry v. State, 206 Ga. App. 490, 426 S.E.2d 52 (1992).

Forgery prosecution not barred if forgery had not been committed.

- After defendant pled guilty to theft by taking for writing fraudulent checks, defendant's subsequent prosecution for forgery for uttering and delivering the checks was not barred under O.C.G.A. § 16-1-8(b)(1), because, when defendant pled guilty to theft by taking, the forgery offenses had not been completed, so defendant could not have been prosecuted for the latter offenses when defendant pled guilty to the former. Furthermore, because the two prosecutions each required proof of facts not required by the other, as proof of forgery did not require proof that defendant unlawfully took property and proof of theft by taking did not require proof that defendant uttered and delivered checks, the subsequent prosecution was not barred. Cade v. State, 262 Ga. App. 206, 585 S.E.2d 172 (2003).

Successive prosecution for financial identity fraud.

- Trial court correctly rejected the defendant's plea in bar and denied defendant's motion in autrefois convict because the defendant did not show that defendant's prosecution for two counts of financial identity fraud under O.C.G.A. § 16-9-121 was barred as an impermissible successive prosecution for the same conduct in another county by defendant's earlier conviction in that county of 33 counts of financial identity fraud. Summers v. State, 263 Ga. App. 338, 587 S.E.2d 768 (2003).

Prosecutor had no prior knowledge, thus prosecution allowed.

- When the facts relating to the defendant's theft by taking and malfeasance in office convictions allegedly arose from the same alleged conduct, but were not known to the state in a prior malpractice in office action and the new offenses involved proof of additional facts, the trial court properly denied the defendant's plea in bar of double jeopardy under O.C.G.A. §§ 16-1-7 and16-1-8. Atkinson v. State, 263 Ga. App. 274, 587 S.E.2d 332 (2003).

Subsequent prosecution denied since prosecutor had earlier knowledge.

- At the time defendant pled guilty to reckless conduct, the prosecutor was aware of facts in the arrest report that clearly contained evidence of aggravated assault, therefore, knowledge of other crimes was imputed to the prosecutor and subsequent prosecution of defendant under aggravated assault indictments was barred by O.C.G.A. §§ 16-1-7 and16-1-8. Billups v. State, 228 Ga. App. 804, 493 S.E.2d 8 (1997).

Term "same conduct" means activities relating to the "same transaction," or earlier crime, not "the same type of conduct," thus, drug sales on March 12 and 25 were not the "same conduct" as a sale made in April, a separate and distinct transaction, and prosecution under two indictments was not barred. State v. Gillespie, 206 Ga. App. 427, 425 S.E.2d 418 (1992).

Conviction for violating county ordinance did not bar conviction under code.

- Defendant's pit bull mauled a child. The defendant's conviction in recorder's court of violating a county ordinance by failing to exercise ordinary care in controlling the defendant's pet for the protection of others was sufficiently separate from a misdemeanor reckless conduct charge under O.C.G.A. § 16-5-60(b), which required proof of a gross deviation from the standard of care, that a successive prosecution for violating § 16-5-60(b) did not violate the double jeopardy ban. State v. Stepp, 295 Ga. App. 813, 673 S.E.2d 257 (2009).

Felony prosecutions not barred by pleas of guilty to misdemeanor offenses.

- Trial court properly denied the defendant's plea in bar based on double jeopardy as the misdemeanor offenses of criminal trespass, open container, and concealed weapon charges and the felony-related offenses of rape, aggravated sodomy, and making a false statement during the sexual assault investigation did not arise from the same conduct because, although the offenses occurred on the same date and close in time, the offenses took place in different locations as the rape and aggravated sodomy occurred inside the victim's apartment and the misdemeanor offenses occurred outside a separate building in the apartment complex, and the state could establish each set of offenses without proving the other. Jackson v. State, 336 Ga. App. 140, 784 S.E.2d 7 (2016).

Pretrial intervention program on related charges did not bar prosecution.

- Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21(b) and16-8-2, was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a), in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017).

Reversal of Conviction for Insufficient Evidence

Second prosecution barred.

- Unless evidence at first trial is sufficient to authorize verdict of guilty, second prosecution is barred. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975); Holcomb v. Peachtree, 187 Ga. App. 258, 370 S.E.2d 23 (1988).

Trial court erroneously admitted an officer's testimony regarding a statement made by one of the victims who died of natural causes prior to trial as the admission violated the defendant's right to confrontation; moreover, because there was no other evidence to support the armed robbery count, the defendant could not be retried for it. Gifford v. State, 287 Ga. App. 725, 652 S.E.2d 610 (2007).

Verdict not authorized by evidence is same as directed verdict of acquittal.

- Under O.C.G.A. § 16-1-8, result of finding that evidence does not authorize verdict is same as directed verdict of acquittal (no retrial in either event); thus, in reviewing overruling of motion for directed verdict of acquittal, Supreme Court will utilize standard used in reviewing overruling of motion for new trial on ground that verdict is contrary to evidence; i.e., the "any evidence" test. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975).

Reversal of conviction due to insufficient evidence bars subsequent prosecution for same crime.

- When one is prosecuted and convicted, a subsequent prosecution is barred if subsequent proceedings (e.g., motion for new trial on general grounds, or appeal) resulted in finding that evidence did not authorize the verdict. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975).

Reversal barred retrial for lesser-included offense.

- Reversal of the defendants' convictions for felony murder based upon armed robbery due to insufficient evidence not only raised a procedural double jeopardy bar for that particular crime, it also raised a procedural double jeopardy bar for the lesser-included offense of criminal attempt to commit armed robbery. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).

Reversal of conviction due to insufficient evidence.

- After the court of appeals reversed the defendant's first conviction because the evidence did not authorize the verdict, prosecution for a different crime which should have been included in the first trial was barred by former Code 1933, § 26-507(b). Marchman v. State, 234 Ga. 40, 215 S.E.2d 467 (1975).

Retrial

O.C.G.A. § 16-1-8(d)(2) specifically permits retrial where a conviction is set aside on appeal for reasons other than the sufficiency of the evidence. Samuel v. State, 190 Ga. App. 539, 379 S.E.2d 571, cert. denied, 190 Ga. App. 899, 379 S.E.2d 571 (1989).

No double jeopardy.

- Double jeopardy claim properly denied where the grant of defendant's motion for a new trial set aside defendant's conviction without adjudging the defendant not guilty or finding that the evidence did not authorize the verdict. Garrard v. State, 242 Ga. App. 189, 528 S.E.2d 273 (2000).

Trial court did not err in denying defendant's plea in bar of former jeopardy where there was no intent on the part of the state to create the circumstances leading to a mistrial, because the case was properly terminated under O.C.G.A. § 16-1-8(e)(2)(B); a finding that the requirements of § 16-1-8(e)(1) had not been met did not automatically lead to the conclusion that the former prosecution terminated improperly. Seymour v. State, 262 Ga. App. 823, 586 S.E.2d 713 (2003).

Evidence at defendant's first trial was sufficient to sustain convictions for aggravated sodomy pursuant to O.C.G.A. § 16-6-2(a), sexual battery pursuant to O.C.G.A. § 16-6-22.1, and aggravated sexual battery pursuant to O.C.G.A. § 16-6-22.2(b); thus, double jeopardy did not prohibit a retrial granted on the ground that defendant received ineffective assistance of counsel. Weldon v. State, 270 Ga. App. 574, 607 S.E.2d 175 (2004).

To the extent that defendant argued that a retrial on charges of burglary and false imprisonment was barred by the extended protection of procedural double jeopardy embodied in O.C.G.A. § 16-1-8, when the state redacted the charge of burglary in the first trial before the jury was impaneled and sworn, the first trial on the charge of false imprisonment ended in a mistrial, and the state tried and defendant was convicted in a second trial on both the burglary and false imprisonment charges, defendant's failure to file a written plea in bar prior to the second trial waived any right to subsequently raise a challenge on procedural double jeopardy grounds. Alexander v. State, 279 Ga. 683, 620 S.E.2d 792 (2005).

Trial court properly denied the defendant's plea in bar based on double jeopardy under U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, seeking to prevent a retrial of criminal charges against defendant after the motion for a mistrial under O.C.G.A. § 16-1-8(e)(1) was granted in the first trial upon the jury's advisement to the trial court judge that they were hopelessly deadlocked due to the refusal by two jurors to consider the direct evidence; the mistrial was properly declared and there was no improper conduct shown by the trial court or the state but rather, the defendant's counsel admitted that defendant hoped that another jury would be more sympathetic to the defendant upon a retrial, as the first jury was deadlocked 10-2 in favor of conviction. Jackson v. State, 282 Ga. App. 476, 638 S.E.2d 865 (2006).

Retrial after not guilty finding returned by an unsworn jury was not barred by the double jeopardy principles under both the U.S. and Georgia Constitutions as the jury lacked any authority to pass upon any of the issues at trial, and hence, could not make any determinations whatsoever as to the defendant's guilt or innocence. Spencer v. State, 281 Ga. 533, 640 S.E.2d 267, cert. denied, 551 U.S. 1103, 127 S. Ct. 2914, 168 L. Ed. 2d 243 (2007).

Because a plea of double jeopardy was found to be frivolous, the defendant's filing of a notice of appeal from the denial of an earlier double jeopardy plea did not divest the trial court of jurisdiction over the case, and hence the filing of a notice of appeal merely deprived the trial court of the court's power to execute the sentence; thus, because the sentence was not imposed against the defendant until after the remittitur was filed below, that sentence was upheld. DeSouza v. State, 285 Ga. App. 201, 645 S.E.2d 684, cert. denied, No. S07C1347, 2007 Ga. LEXIS 539 (Ga. 2007).

Retrial of a charge of possession of a firearm by a convicted felon would not itself violate double jeopardy or any other constitutional right since the right not to be prosecuted on a count which was quashed for the second time was purely statutory pursuant to O.C.G.A. § 17-7-53.1. Langlands v. State, 282 Ga. 103, 646 S.E.2d 253 (2007).

Trial court erred in granting the defendant's plea in bar because double jeopardy did not bar a second trial on the same charges since the retrial was granted due to an erroneous evidentiary ruling; the order granting a new trial did not find the evidence was legally insufficient to sustain the verdict, but instead, the second trial judge granted the new trial based on the original trial court's error in admitting an exhibit to prove that the defendant had a prior felony conviction after the defendant had offered to stipulate that the defendant was a convicted felon. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012).

Since the reversal of a defendant's convictions amounted to neither an adjudication of not guilty nor a finding that the evidence did not authorize the verdict, the defendant's re-indictment and retrial were not barred. Dryden v. State, 316 Ga. App. 70, 728 S.E.2d 245 (2012).

Trial court did not err by declaring a mistrial after the first trial and retrying the defendant because the defendant did not show that the defendant raised the doctrine of procedural double jeopardy prior to the second trial. Riddick v. State, 320 Ga. App. 500, 740 S.E.2d 244 (2013).

Since the record established that the order authorizing the withdrawal of the defendant's guilty pleas was vacated on the defendant's own motion, thereby reinstating the defendant's original guilty pleas and convictions, there was not a second prosecution and the trial court did not err by denying the defendant's motion for plea in bar. Pierce v. State, 294 Ga. 842, 755 S.E.2d 732 (2014).

Allen charge.

- After a jury indicated that it was deadlocked and then requested a second Allen charge, the trial court did not abuse its discretion in declaring a mistrial; consequently, defendant's plea in bar for double jeopardy lacked merit. DeSouza v. State, 270 Ga. App. 849, 608 S.E.2d 313 (2004).

Retrial and sentencing after conviction set aside.

- State generally may retry defendant who succeeds in having first conviction set aside and, as a corollary of that power, to impose whatever sentence may be authorized, whether or not it is greater than sentence imposed after first conviction. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975).

Although defendant's conviction was reversed because the state did not meet its burden of production as to defendant's motion challenging the sufficiency of a search warrant affidavit, the defendant could be retried since defendant's conviction was set aside on procedural grounds. Watts v. State, 261 Ga. App. 230, 582 S.E.2d 186 (2003).

In the context of a granted motion for mistrial, governmental misconduct will support a plea in bar based on double jeopardy if the prosecutor or trial judge intended to goad the defendant into moving for a mistrial. In the context of a reversal or grant of a motion for new trial, on the other hand, double jeopardy may bar a retrial where the prosecutor intended to prevent an acquittal, or the trial judge accused of misconduct, believed at the time was likely to occur in the absence of the judge's misconduct. Paul v. State, 266 Ga. App. 126, 596 S.E.2d 670 (2004).

Imposition of greater sentence upon retrial.

- Imposition of higher sentence on defendant being retried for crime does not violate due process or constitute double jeopardy so long as jury is not informed of prior sentence and second sentence is not otherwise shown to be a product of vindictiveness. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975).

When the state seeks to prosecute a defendant for two offenses, one of which is included in the other, and the defendant receives a mistrial on the greater offense, the remaining conviction of the lesser offense does not bar retrial of the greater offense. Rower v. State, 267 Ga. 46, 472 S.E.2d 297 (1996).

Effect of reversal for error at trial.

- Because the reversal of defendant's conviction was based on trial error, double jeopardy did not prevent retrial. Daniels v. State, 165 Ga. App. 397, 299 S.E.2d 746 (1983).

Double jeopardy protection did not bar a second trial on the same charges because the defendant's motion for new trial was granted due to an erroneous evidentiary ruling. State v. Caffee, 291 Ga. 31, 728 S.E.2d 171 (2012).

Retrial was not barred when reversal based on inadmissible evidence.

- When the conviction was reversed on the basis that the testimony of certain witnesses was inadmissible hearsay, and since it was clear from the court's opinion that the majority neither intended to nor actually did pass upon the sufficiency of the evidence, the defendant's plea of double jeopardy was properly denied; the question remained whether the evidence did indeed support the verdict, and the trial transcript revealed circumstantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Glisson v. State, 192 Ga. App. 409, 385 S.E.2d 4, cert. denied, 192 Ga. App. 901, 385 S.E.2d 4 (1989).

When the actions of a prosecutor cause a mistrial, a second trial does not constitute double jeopardy in violation of the defendant's constitutional rights. Japhet v. State, 176 Ga. App. 189, 335 S.E.2d 425 (1985).

Trial court did not err in denying the defendant's plea of former jeopardy because the court's finding that the prosecution's question on cross-examination was an unintentional reference to the defendant's right to remain silent was not clearly erroneous; the record contained evidence to support the trial court's finding that the prosecutor's question was not intended to goad the defense into seeking a mistrial. Demory v. State, 313 Ga. App. 265, 721 S.E.2d 93 (2011).

Prosecutor's actions resulting in mistrial and creating double jeopardy.

- Because a prosecutor's conduct violated one of the most basic rules of prosecutorial procedure, specifically, producing documents in discovery showing that the defendant refused to speak with police and requested a lawyer after being advised of Miranda, and hence intentionally goading the defendant into moving for a mistrial, the trial court erred in denying the defendant's motion for a plea in bar on double jeopardy grounds. Anderson v. State, 285 Ga. App. 166, 645 S.E.2d 647 (2007).

Nature of prosecutor's misconduct.

- When it was not shown that the prosecutor's misconduct was for the purpose of aborting the trial and securing an opportunity to retry the case, the trial court properly concluded that double jeopardy did not bar defendant's retrial. Dinning v. State, 267 Ga. 879, 485 S.E.2d 464 (1997).

Governmental misconduct.

- After the trial court previously granted the defendant's motion for a mistrial and, although it was not specified why the motion was granted, it was assumed that it was granted due to the state's intentional misconduct during that first trial, because there was no indication in the trial court record of any specific intent by the state to subvert defendant's double jeopardy rights by provoking the defendant into seeking the mistrial, the trial court erred in granting the defendant's motion for discharge and acquittal of a retrial on double jeopardy grounds. State v. Brown, 278 Ga. App. 827, 630 S.E.2d 62 (2006).

Retrial after mistrial due to jury's failure to reach verdict did not constitute double jeopardy under former Code 1933, § 26-507(e)(2)(C) (see now O.C.G.A. § 16-1-8(e)(2)(C)). Phillips v. State, 238 Ga. 632, 235 S.E.2d 12 (1977).

Retrial for lack of sufficient venue evidence.

- Absent sufficient proof establishing venue, the defendant's aggravated sexual battery and aggravated sodomy convictions were reversed; but, given that sufficient evidence otherwise existed to support the former charge, retrial on the same would not violate the defendant's double jeopardy rights. Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006).

Because the state failed to prove the element of venue beyond a reasonable doubt, and there was no indication in the record that the juvenile waived venue or that the court took judicial notice of venue as an element of the offenses charged, the juvenile's adjudications of delinquency had to be reversed. However, although the delinquency adjudications had to be reversed, the state was permitted to retry the juvenile without violating the double jeopardy clause, because there was otherwise sufficient evidence at trial to support the adjudications entered. In the Interest of J.B., 289 Ga. App. 617, 658 S.E.2d 194 (2008).

Purposes of discharge of jury for failure to agree.

- Possibility of retrial after discharge of jury for failure to agree serves to discourage putting excessive pressure on juries to agree, and reduces risk that verdict will not be a genuine jury decision freely arrived at. In addition, it serves to prevent a single juror from unreasonably holding out for acquittal, causing a mistrial, and thereby invoking bar of double jeopardy singlehandedly. Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976).

Retrial allowed following mistrial based on juror's disqualification.

- Removal of a juror who had mistakenly misadvised the trial court as to the juror's qualifications upon voir dire, thereby depriving the jury of the statutory minimum number, constituted "manifest necessity" for a mistrial, and retrial following such mistrial was not barred by a plea of double jeopardy. Bishop v. State, 179 Ga. App. 606, 347 S.E.2d 350 (1986).

Retrial not necessarily barred by fact that alternative to mistrial existed.

- Mere existence of some alternative will not compel conclusion that declaration of mistrial by trial judge was sufficiently precipitate to bar retrial. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).

When a mistrial was granted at the request of the defendant, retrial was not prohibited since it was not established that the state intended to goad the defendant into moving for a mistrial. Williams v. State, 268 Ga. 488, 491 S.E.2d 377 (1997).

After the trial court duly weighed the respective rights of the defendant and the state before electing sua sponte to declare a mistrial in a trial where no evidence had been presented and the defense's case still remained unknown to the state, and since the court had considered other lesser alternatives, including the granting of a continuance, the trial court did not err in denying the defendant's motion to dismiss or acquit by reason of former jeopardy. Terrell v. State, 236 Ga. App. 163, 511 S.E.2d 555 (1999).

While more options other than a mistrial are available to a trial court faced with a deadlocked jury, the trial court is not required to exercise those options under all circumstances; instead, an appellate court considers the trial court's decision in this regard to be discretionary and it will reverse only if the trial court abuses that discretion. Leonard v. State, 275 Ga. App. 667, 621 S.E.2d 599 (2005).

Retrial is permissible only if a manifest necessity existed for declaration of mistrial lest otherwise the end of public justice be defeated. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).

"Manifest necessity" for a mistrial shown.

- In a bench trial, the judge's inability to disregard evidence the judge ruled inadmissible constituted a manifest necessity for a mistrial and the defendant's double jeopardy rights would not be violated by a retrial to a jury. Bailey v. State, 219 Ga. App. 258, 465 S.E.2d 284 (1995).

After a news story about the case appeared in a local newspaper the morning after the trial court had decreed a recess to consider a question regarding the admissibility of certain evidence objected to by the defense, it was within the court's discretion to declare a mistrial based on "manifest necessity." Putnam v. State, 245 Ga. App. 95, 537 S.E.2d 384 (2000).

In the defendant's trial for malice murder and felony murder arising out of the shooting death of a drug dealer, the trial court did not abuse the court's discretion in declaring a mistrial over the defendant's objection out of manifest necessity given that a juror had consulted with outside sources and shared legally inaccurate information with the jury. The mistrial did not bar the defendant's retrial on the charges. Blake v. State, 304 Ga. 747, 822 S.E.2d 207 (2018).

"Manifest necessity" for a mistrial not shown.

- Failure to hold a Jackson-Denno hearing over defendant's allegation that a custodial statement had been coerced and introduction of testimony of the defendant related thereto did not create "manifest necessity" for a mistrial. Smith v. State, 263 Ga. 782, 439 S.E.2d 483 (1994).

Cross examination of an accomplice who has negotiated a plea and is testifying against a defendant, in order to bring out bias inherent in the witness's testimony, is proper and constitutionally protected, therefore granting a mistrial over defendant's objection was error and manifest necessity did not exist. Hernandez v. State, 244 Ga. App. 874, 537 S.E.2d 149 (2000).

Retrial was barred where the trial court improperly terminated a trial because defendant was not timely notified of additional charges; the court failed to consider alternative remedies which would have preserved defendant's right to proceed with the trial. Jefferson v. State, 224 Ga. App. 8, 479 S.E.2d 406 (1996).

Because the trial court's grant of a new trial stemmed from trial error, the defendant could not be retried on an offense of per se DUI, given that the defendant was adjudged not guilty of that charge based upon the insufficiency of the evidence; thus, the trial court erred in denying the plea in bar. Shah v. State, 288 Ga. App. 788, 655 S.E.2d 347 (2007).

Denial of the plea in bar, which asserted double jeopardy grounds after the first trial of the defendant ended with the trial judge's sua sponte declaration of a mistrial due to a violation of the sequestration rule, was erroneous as there was no manifest necessity for a mistrial because there was no evidence that the rule was violated; even if two defense witnesses could have heard testimony from the witness stand, there was no evidence of prejudice from any presumed overhearing of testimony as there was no evidence showing that either of the witnesses would have changed their testimony to match that of other witnesses; and the mere absence of an objection to the mistrial, without more, did not constitute consent to the mistrial. Brown v. State, 354 Ga. App. 493, 841 S.E.2d 125 (2020).

If the possibility of prosecutorial abuse exists, examination of the alternatives to mistrial is more stringent. Jones v. State, 232 Ga. 324, 206 S.E.2d 481 (1974).

Defense could not prevent retrial by withholding consent to mistrial, since even if the trial court had erred in terminating the homicide trial, and even if the defense could not be blamed for misunderstanding the trial court's ruling on whether the court would permit argument and admit evidence concerning the prosecutor's political ambitions, nevertheless it was the defense who injected the matter that resulted in the mistrial. McGarvey v. State, 186 Ga. App. 562, 368 S.E.2d 127, cert. denied, 186 Ga. App. 918, 368 S.E.2d 127 (1988).

When a defendant faced two separate charges for driving under the influence, occurring on two different dates, defendant's acquittal on the first charge of driving under the influence did not bar a subsequent prosecution for driving under the influence on the later date, where neither of the accusations stated that the date of the alleged offenses was a material averment and the state could prove their commission at any time within the two-year statute of limitations. Sandner v. State, 193 Ga. App. 62, 387 S.E.2d 27 (1989).

Defendant's abuse of rape shield statute justified retrial.

- Defendant's introduction of evidence that was prohibited by the rape shield statute gave the court grounds to find manifest necessity for a mistrial; therefore, state and federal double jeopardy provisions did not bar reprosecution. Banks v. State, 230 Ga. App. 258, 495 S.E.2d 877 (1998).

Jurisdictional Issues

Acquittal before court having no jurisdiction is void, and therefore is not a bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev'd on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Failure to prove venue in first trial is not prohibition to new trial.

- Retrial of defendants was not barred by O.C.G.A. § 16-1-8 because a subsequent prosecution was not barred if the former prosecution was before a court which lacked jurisdiction over the accused or the crime, and the trial court in the first trial lacked jurisdiction over the crime because the state failed to prove venue, and therefore O.C.G.A. § 16-1-8(d)(1) applied. Grier v. State, 275 Ga. 430, 569 S.E.2d 837 (2002).

After a defendant was granted a directed verdict on the basis that the state failed to prove venue in a criminal prosecution for driving under the influence per se, retrial was not barred under U.S. Const., amend. 5 and O.C.G.A. § 16-1-8 because, while venue had to be laid in the county in which the crime was allegedly committed under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2 and venue was a jurisdictional fact, failure to prove venue was a procedural error that implied nothing as to defendant's guilt or innocence. Hudson v. State, 296 Ga. App. 758, 675 S.E.2d 603, cert. denied, No. S09C1163, 2009 Ga. LEXIS 413 (Ga. 2009), cert. denied, 558 U.S. 1076, 130 S. Ct. 799, 175 L. Ed. 2d 559 (2009).

No former jeopardy bar from prior accusation.

- As defendant was initially charged by accusation with terroristic threats and aggravated stalking, which were not properly prosecuted without an indictment or a written waiver thereof pursuant to O.C.G.A. §§ 17-7-70(a) and17-7-70.1, the dismissal of the accusation after the jury was sworn and the indictment of the same charges was proper and there was no former jeopardy bar under O.C.G.A. § 16-1-8(d)(1), as the former prosecution under the indictment was void and of no effect. Armstrong v. State, 281 Ga. App. 297, 635 S.E.2d 880 (2006).

Effect of proceedings in municipal court which lacks jurisdiction.

- Fact that charges were initially brought against the criminal defendant in municipal court under former Code 1933, § 79A-9917 (see now O.C.G.A. § 16-13-2) did not bar subsequent proceedings against defendant in state court on double jeopardy grounds, where municipal court lacks jurisdiction of such case. State v. Millwood, 242 Ga. 244, 248 S.E.2d 643 (1978).

Since the recorder's court lacked jurisdiction to try a defendant for driving without insurance, a violation of state law, neither O.C.G.A. § 16-1-7(b) nor § 16-1-8(b) precluded later prosecution in superior court for operating a motor vehicle after having been declared an habitual violator and for driving under the influence. Parker v. State, 170 Ga. App. 333, 317 S.E.2d 209 (1984).

Proceeding in recorder's court was null and void because the court lacked jurisdiction to try the defendant for a state law violation; thus, the defendant's retrial did not constitute double jeopardy or prior prosecution. Duncan v. State, 185 Ga. App. 854, 366 S.E.2d 154 (1988), overruled on other grounds, Kolker v. State, 193 Ga. App. 306, 387 S.E.2d 597 (1989).

Since the municipal court lacked jurisdiction to try defendant pursuant to a Uniform Traffic Citation charging defendant with "simple battery" in violation of "Section16-5-23", prosecution of the offense before such court was void; accordingly, trial of defendant for simple battery in the state court was not barred on the ground of double jeopardy or prior prosecution. Rangel v. State, 217 Ga. App. 152, 456 S.E.2d 739 (1995).

Jurisdictional effect of election to try misdemeanor included within felony.

- Even though evidence in case indicates a felony was committed, prosecuting authorities may very well elect to try defendant in state court for misdemeanor included within that felony, and fact that they have so proceeded will not deprive state court of jurisdiction. Perkins v. State, 143 Ga. App. 124, 237 S.E.2d 658 (1977).

Kidnapping with bodily injury in one county and murder in another.

- When the accused kidnapped the victim and inflicted bodily injury upon the victim in one county, and then abducted the victim to a second county and killed the victim there, the two offenses are not within a single court's jurisdiction and cannot be tried together; therefore, there is no procedural bar to the accused's subsequent prosecution for murder in the second county. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Jurisdiction not barred where defects in charge amendable.

- Probate court did not lack jurisdiction over defendant even though a proper accusation was not filed since the defects cited by the defendant in demurrers were amendable. Dean v. State, 214 Ga. App. 768, 449 S.E.2d 158 (1994).

Concurrent jurisdiction required.

- Because the state could not indict defendant for unlawfully using or causing another to use a telephone to arrange the commission of the victim's murder, no concurrent jurisdiction existed; therefore, O.C.G.A. § 16-1-8(c) did not bar the state from prosecuting defendant for malice murder, felony murder, aggravated assault, and burglary. Sullivan v. State, 279 Ga. 893, 622 S.E.2d 823 (2005).

Application Generally

Application of subsection (a).

- O.C.G.A. § 16-1-8(a) governs when an accused is being prosecuted for a crime, the first trial of which was terminated for any reason listed in O.C.G.A. § 16-1-8(e), since it is a situation in which the accused was formerly prosecuted for the same crime based upon the same material facts. If a case fits within the parameters of subsection (a), that becomes the exclusive means for determining whether double jeopardy bars a retrial. State v. LeMay, 186 Ga. App. 146, 367 S.E.2d 61 (1988).

When a defendant consented to the entry of nolle prosequi after the jury had been impaneled and sworn, and the defendant was thereafter charged with the same offense, the original prosecution was neither an acquittal nor an improperly terminated prosecution for the purposes of O.C.G.A. § 16-1-8. Burks v. State, 194 Ga. App. 809, 392 S.E.2d 300 (1990).

In a criminal matter wherein the state brought charges against defendant, a bench trial was commenced, witnesses were sworn in and testified, and the state thereafter terminated that case when it nolle prossed the charges over defendant's objection, jeopardy attached under Ga. Const. 1983, Art. I, Sec. 1, Para. XVIII, and under O.C.G.A. § 16-1-8(a)(2), the state could not thereafter retry defendant on the same charges; although the state's reason for nolle prossing the first set of charges was due to the state's inability to introduce DNA evidence as to defendant's identity, as the state failed to include that information in the indictment in order to avoid a limitations issue, the reason was inconsequential because jeopardy had attached. State v. Aycock, 283 Ga. App. 876, 643 S.E.2d 249 (2007).

Trial court properly granted the defendant's plea in bar and plea of former jeopardy in a burglary prosecution as the state improperly terminated the first trial by dismissing the indictment after jeopardy attached without the defendant's consent, and the second burglary prosecution, although alleging a different date, residence, and accomplice, was based on the same material facts as the first indictment. State v. Jackson, 290 Ga. App. 250, 659 S.E.2d 679 (2008).

Application of subsection (b).

- Prosecution for forgery was not barred by O.C.G.A. § 16-1-8(b)(1) because defendant could not have been convicted of forgery in the state court due to the court's lack of jurisdiction and because there was no evidence that the district attorney handling the former prosecution case knew of all the crimes. State v. Hulsey, 216 Ga. App. 670, 455 S.E.2d 398 (1995).

Both multiple convictions and successive prosecutions barred.

- If multiple convictions arising out of single prosecution are barred, successive prosecution is likewise barred. Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978).

Multiple accusations and indictments not barred.

- Because the crimes alleged in the accusation and indictment involved different victims, locations, and times, and hence did not arise from the same conduct, the trial court did not err in denying the defendant's motion to dismiss the charges in the indictment on double jeopardy grounds based on the defendant's prior plea to the charges in the accusation. Davis v. State, 287 Ga. App. 535, 652 S.E.2d 177 (2007).

No reprosecution for armed robbery.

- Reversal of defendant's convictions for felony murder based on the felony of armed robbery due to insufficient evidence raises a procedural double jeopardy bar to any reprosecution for armed robbery. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).

Carjacking and armed robbery.

- Defendant's prosecution for a car hijacking was not barred by O.C.G.A. § 16-1-8(b)(1) as the car hijacking and the armed robbery did not arise from the same conduct because the car hijacking incident and the armed robbery incident occurred three days apart, took place at different locations, and involved different victims. Syas v. State, 273 Ga. App. 161, 614 S.E.2d 803 (2005).

Effect of erroneously labeling dismissal for failure to prosecute as acquittal.

- Trial judge cannot terminate state's right to prosecute by erroneously labeling ruling an acquittal. Accordingly, the state is not barred from appealing such void acquittals, since the issue has not been joined in criminal cases and the defendant has not been placed in jeopardy on those charges. State v. Cooperman, 147 Ga. App. 556, 249 S.E.2d 358 (1978).

Effect of improper revocation of bond.

- Incarceration of defendant resulting from the improper revocation of defendant's bond was not a bar to prosecution for vehicular homicide and related offenses. Shaw v. State, 225 Ga. App. 193, 483 S.E.2d 646 (1997).

Continuation of a trial for two months before the same jury, absent exceptional circumstances or consent of the parties, was improper; however, the continuance did not constitute a "termination" within the meaning of O.C.G.A. § 16-1-8 and later proceedings were not barred by double jeopardy; overruling Paquin v. Town of Tyrone, 261 Ga. 418, 405 S.E.2d 497 (1991). Morris v. State, 264 Ga. 823, 452 S.E.2d 100 (1995).

Effect on subsequent prosecution of nolle prosequi before jury impaneled.

- When in superior court, before a jury is impaneled and sworn, the state enters a nolle prosequi of the indictment, and one of the charges is transferred to the county solicitor's office where it subsequently is included in an accusation before the state court, this does not result in an improper termination or constitute the basis for prosecutorial misconduct, and the prosecution is not barred because of double jeopardy. Newman v. State, 166 Ga. App. 609, 305 S.E.2d 123 (1983).

Motion to dismiss waives right to object to termination of trial and no former jeopardy arises. Daughtrey v. State, 138 Ga. App. 504, 226 S.E.2d 773 (1976).

Defendant was named as unindicted coconspirator in entirely different proceeding which in no way operated to place defendant in double jeopardy. Caldwell v. State, 171 Ga. App. 680, 320 S.E.2d 888 (1984).

Record must affirmatively demonstrate that issue in second trial was previously determined.

- Unless record of prior proceeding affirmatively demonstrates that issue involved in second trial was definitely determined in former trial, possibility that it may have been does not prevent relitigation of that issue. State v. Tate, 136 Ga. App. 181, 220 S.E.2d 741 (1975).

Effect of trial court's findings of juror impartiality.

- Although question of juror impartiality is a mixed question of law and fact, trial court's findings of impartiality will be set aside only where manifest prejudice to defendant has been shown. Jones v. State, 247 Ga. 268, 275 S.E.2d 67, cert. denied, 454 U.S. 817, 102 S. Ct. 94, 70 L. Ed. 2d 86 (1981).

Vehicular homicide prosecution not barred when victim died following traffic violation prosecutions.

- Prosecution for vehicular homicide was not barred against a defendant who at prior proceedings had been prosecuted for and pled guilty to other offenses arising from the same incident since, at the time of the earlier proceedings, the victim had not yet died. Herrera v. State, 175 Ga. App. 740, 334 S.E.2d 339 (1985).

Effect of prior hearing under Uniform Code of Military Justice.

- Recommended dismissal, arising from Article 32 hearing under Uniform Code of Military Justice (10 U.S.C. § 832), is not acquittal or an equivalent resolution of factual issues in defendant's favor. Coalter v. State, 183 Ga. App. 335, 358 S.E.2d 894 (1987).

Federal firearm conviction did not bar prosecution for felony murder.

- Fact that the defendant had been convicted in federal court of possession of a firearm under 18 U.S.C. § 922 did not bar a felony murder prosecution in state court on double jeopardy grounds as the state had to prove facts in the felony murder case that were not required to be proved in the federal case. Moreover, the federal offense, which required that a firearm be possessed in and affecting interstate commerce, was not within the concurrent jurisdiction of Georgia and under O.C.G.A. § 16-1-8(c) did not bar a subsequent prosecution for felony murder predicated on the underlying firearm possession charge. Marshall v. State, 286 Ga. 446, 689 S.E.2d 283 (2010).

Trial in Georgia appropriate despite trial in another state.

- As the defendant's theft by taking an automobile occurred in both Georgia and Kentucky, the fact that the defendant was prosecuted in Kentucky did not bar Georgia from also prosecuting the defendant under the dual sovereignty doctrine of the double jeopardy clause; further, O.C.G.A. § 16-1-8(c) was inapplicable because there was not a federal prosecution for the same crime. Jackson v. State, 284 Ga. 826, 672 S.E.2d 640 (2009).

Acquittal on aggravated sodomy charge did not bar conviction for sexual assault under another count of the indictment. The dates alleged for the two charges were different, and the victim recounted two separate incidents when defendant performed oral sex on the victim. In short, the charges did not involve the same conduct, and no substantive or procedural aspects of double jeopardy were violated. Brown v. State, 188 Ga. App. 510, 373 S.E.2d 293 (1988).

Indictment on charges previously nolle prossed.

- It was not a violation of O.C.G.A. §§ 16-1-7(b) and16-1-8(b) to indict the defendant on charges that had previously been nolle prossed under a plea agreement; the defendant breached the agreement by withdrawing a guilty plea to one charge, thereby allowing the state to indict the defendant on the charges that were previously nolle prossed. Thomas v. State, 285 Ga. App. 792, 648 S.E.2d 111, cert. denied, No. S07C1550, 2007 Ga. LEXIS 628 (Ga. 2007).

Indictment returned while jeopardy ongoing.

- Second indictment, which was apparently filed to address the eventuality that the defendants' motion to withdraw a guilty plea would be granted, was returned while the defendant's jeopardy was ongoing, and, as such, the indictment did not violate U.S. Const., amend. 5; Ga. Const. 1983, Art. I, Sec. I, Para. XVIII; or O.C.G.A. § 16-1-8. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).

Second indictment did not violate double jeopardy under O.C.G.A. § 16-1-8(a) as entry of nolle prosequi as to earlier counts did not give rise to a viable double jeopardy challenge to reindictment on the same offenses. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).

Independent offenses.

- Defendant's plea of guilty to receipt of the victim's automobile did not bar prosecution for burglary of the victim's home prior to taking the vehicle. Maxey v. State, 239 Ga. App. 638, 521 S.E.2d 673 (1999).

Defendant not placed in jeopardy.

- Trial court erred by granting defendant's plea in bar and by granting defendant's request for acquittal and discharge of aggravated battery and aggravated assault counts based on procedural double jeopardy protections as defendant was never placed in jeopardy as to those charges, which were brought in a new indictment against defendant, and defendant's speedy trial request did not apply to the new indictment since the case had been transferred to the superior court. State v. Jones, 290 Ga. App. 879, 661 S.E.2d 573 (2008).

State permitted to prove case against defendant.

- Because the defendant's brother was prosecuted in federal court for possession of a cocaine mixture in an apartment, the state was permitted to prove the state's case against the defendant by proof of joint constructive possession; the state did not prosecute the brother for the brother's joint constructive possession of the cocaine mixture in the apartment, but the United States did prosecute the brother in federal court. Holiman v. State, 313 Ga. App. 76, 720 S.E.2d 363 (2011).

Firearm conviction not precluded by collateral estoppel.

- Defendant's conviction of possession of a firearm by a convicted felon was not precluded by collateral estoppel where defendant was acquitted of two other charges (aggravated assault and possession of a firearm during commission of a crime against a person) arising out of the same incident; the jury could have concluded that defendant had the gun but did not assault or attempt to rob the victim with it. Clark v. State, 194 Ga. App. 280, 390 S.E.2d 425 (1990).

Disorderly conduct and DUI.

- State was not barred from prosecuting defendant for the charges of violation of probationary license and DUI even though defendant had already been prosecuted for a disorderly conduct charge which arose out of a disturbance at a restaurant shortly before defendant drove off and was then stopped and charged with DUI. Selvey v. State, 201 Ga. App. 848, 412 S.E.2d 611 (1991).

Double jeopardy issues with vehicular offenses.

- Because a uniform traffic citation was deliberately withheld from filing, and the state did not authorize or participate in the prosecution of the case, the probate court lacked authority to accept defendant's plea to the proposed charge and impose a fine, making its resulting judgment void; hence, the trial court did not err in denying defendant's plea in bar based on double jeopardy, since the probate court's void judgment could not serve as the basis for barring the subsequent indictment and prosecution of defendant in the superior court. Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006).

Premature termination of trial.

- Termination of defendant's trial after the first witness was sworn, but before findings were rendered by the trier of facts, was improper, where there was nothing in the record to indicate that defendant consented to the premature termination of trial, nor any evidence that defendant waived the right to object to the termination. Phillips v. State, 197 Ga. App. 491, 399 S.E.2d 234 (1990).

Superior court erred in overruling defendant's plea of former jeopardy to a prosecution for driving under the influence, where a recorder's court judge had improperly terminated defendant's trial on the same charge in referring the case to the superior court. Phillips v. State, 197 Ga. App. 491, 399 S.E.2d 234 (1990).

Defendant was placed in double jeopardy where the probate court terminated the trial after the first witness was sworn and before findings of fact were rendered by the trier of fact and the court, sua sponte, bound over the case to the superior court without consent of the defendant to the bind-over. Dean v. State, 214 Ga. App. 768, 449 S.E.2d 158 (1994).

Defendant waived the right to object to termination of probate court proceedings by requesting the probate court judge to bind the case over to the superior court. Bramlett v. State, 222 Ga. App. 687, 475 S.E.2d 704 (1996).

Predicate offenses for RICO violation.

- Failure to strike from a Racketeer Influenced and Corrupt Organizations Act (RICO) indictment, as predicate offenses, three thefts which had been formerly prosecuted was harmless error, where there was no reason to infer that defendant's guilty pleas to other offenses were tainted or otherwise affected by the superfluous addition of predicate offenses which had formerly been prosecuted. Bethune v. State, 198 Ga. App. 490, 402 S.E.2d 276, cert. denied, 198 Ga. App. 897, 402 S.E.2d 276 (1991).

Sale and possession or drug offenses.

- When defendant engaged in two separate courses of conduct, the attempt to sell marijuana to an undercover police officer and the possession of 12 pounds of marijuana at defendant's home, double jeopardy did not attach to the second prosecution, as these acts occurred at different times and locations, with distinct quantities of contraband, even though defendant might have at some earlier time possessed all the marijuana in defendant's home; thus, defendant's argument on substantive double jeopardy was rejected. Kinchen v. State, 265 Ga. App. 474, 594 S.E.2d 686 (2004).

Felony murder prosecution not precluded by double jeopardy claim.

- In a case arising out of a robbery and shooting death, where, in the original trial, a mistrial was entered on the felony murder count, and defendant was found not guilty of aggravated assault with intent to rob, the state's subsequent prosecution of defendant for felony murder based on the separate underlying felony of aggravated assault with a deadly weapon was not barred by collateral estoppel as a violation of defendant's double jeopardy rights because evidence adduced at the first trial revealed that defendant jury could have concluded that defendant assaulted the victim with a deadly weapon but did not do so with the intent to rob. Phillips v. State, 272 Ga. 840, 537 S.E.2d 63 (2000).

State's motion for mistrial based on lack of disclosure did not prohibit retrial.

- Trial court did not abuse its discretion in granting the state's motion for a mistrial and ordering that defendant disclose additional alibi witnesses that defense counsel did not disclose after the state demanded such disclosure, but whom defense counsel mentioned in opening statement to the jury in defendant's death penalty case, as the trial court's decision to grant that sanction was entitled to great deference and the failure to disclose the additional alibi witnesses violated the state's right to a fair trial and the state was not precluded from retrying defendant after it obtained such disclosure. Tubbs v. State, 276 Ga. 751, 583 S.E.2d 853 (2003).

Subsequent prosecution not barred since prosecutor had no earlier knowledge.

- Because the defendant failed to affirmatively show that the prosecutor had any actual knowledge regarding approximately $300,000 worth of jewelry items found in a toolbox located at the defendant's residence upon an eviction, which were the subject of a second theft prosecution involving jewelry the defendant had stolen, the second prosecution regarding those items was not barred on double jeopardy grounds. White v. State, 284 Ga. App. 805, 644 S.E.2d 903, cert. denied, No. S07C1243, 2007 Ga. LEXIS 564 (Ga. 2007).

Trial court did not err by denying the defendant's motion to dismiss on double jeopardy grounds because, before the first trial, the witness statements did not demand a finding, as a matter of law, that the prosecutor had actual knowledge that the defendant had committed the crimes of conspiring to distribute marijuana and distributing marijuana; and, with regard to the gang crime, there was evidence that the state knew only that the defendant had joined a gang years before, not that the defendant was currently involved in drug-related gang activity. Randolph v. State, 334 Ga. App. 475, 780 S.E.2d 19 (2015).

Sentence vacated and resentencing ordered when the trial court erred by increasing a juvenile defendant's voluntary manslaughter sentence after defendant had already begun serving the sentence, because the original sentence was final at the time it was imposed, and defendant had no reason to believe otherwise; hence, the trial court's increased sentence constituted double jeopardy and could not stand. Williams v. State, 273 Ga. App. 42, 614 S.E.2d 146 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Separate prosecutions for municipal and state law prosecutions.

- An accused arrested for separate non-included offenses arising out of a single transaction, which violate municipal ordinances and state law respectively, may be prosecuted first in the recorder's court for the municipal ordinance violations, and then transferred to the superior court to be prosecuted for the separate state violations, without violating statutory or constitutional double jeopardy prohibitions. 1986 Op. Att'y Gen. No. U86-32.

RESEARCH REFERENCES

Am. Jur. 2d.

- 16B Am. Jur. 2d, Constitutional Law, § 643 et seq. 21 Am. Jur. 2d, Criminal Law, §§ 269 et seq., 315 et seq., 323 et seq. 75B Am. Jur. 2d, Trials, § 1407 et seq.

C.J.S.

- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 212. 22A C.J.S. Criminal Procedure and Rights of the Accused, § 605 et seq.

ALR.

- Conviction or acquittal of larceny as bar to prosecution for burglary, 19 A.L.R. 626.

Pendency in one county of charge of larceny as bar to subsequent charge in another county of offense which involves both felonious breaking and felonious taking of same property, 19 A.L.R. 636.

Conviction or acquittal upon charge of murder of, or assault upon, one person as bar to prosecution for like offense against another person at the same time, 20 A.L.R. 341; 113 A.L.R. 222.

Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another, 44 A.L.R. 564; 172 A.L.R. 1053.

Illness or death of member of juror's family as justification for declaring mistrial and discharging jury in criminal case, 53 A.L.R. 1062.

Award of venire de novo or new trial after verdict of guilty as to one or more counts and acquittal as to another as permitting retrial or conviction on latter count, 80 A.L.R. 1106.

Discharge on habeas corpus after conviction as affecting claim or plea of former jeopardy, 97 A.L.R. 160.

Impersonation or false statement by juror as to his identity as ground for new trial, 127 A.L.R. 717.

Conviction or acquittal in criminal prosecution as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.

Conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.

Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.

Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.

Prejudicial effect of prosecuting attorney's argument to jury that people of city, county, or community want or expect a conviction, 85 A.L.R.2d 1132.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery of another person committed at the same time, 51 A.L.R.3d 693.

Former jeopardy: Propriety of trial court's declaration of mistrial or discharge of jury, without accused's consent, on ground of prosecution's disclosure of prejudicial matter to, or making prejudicial remarks in presence of, jury, 77 A.L.R.3d 1143.

Propriety and prejudicial effect of informing jury that accused has taken polygraph test, where results of test would be inadmissible in evidence, 88 A.L.R.3d 227.

Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - modern state cases, 88 A.L.R.3d 449.

Acquittal of criminal charges other than contempt as precluding contempt proceedings relating to same transaction, 88 A.L.R.3d 1089.

Acquittal as bar to prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.

Propriety and prejudicial effect of prosecutor's argument to jury indicating that he has additional evidence of defendant's guilt which he did not deem necessary to present, 90 A.L.R.3d 646.

Propriety and prejudicial effect of prosecutor's argument giving jury impression that judge believes defendant guilty, 90 A.L.R.3d 822.

Instructions urging dissenting jurors in state criminal case to give due consideration to opinion of majority (Allen charge) - modern cases, 97 A.L.R.3d 96.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - modern view, 18 A.L.R.4th 802.

Effect of juror's false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family, 38 A.L.R.4th 267.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - modern view, 97 A.L.R.5th 201.

16-1-9. Application of title to crimes committed prior to enactment.

This title shall govern the construction and punishment of any crime defined in this title committed on and after July 1, 1969, as well as the construction and application of any defense. This title does not apply to or govern the construction or punishment of any crime committed prior to July 1, 1969, or the construction or application of any defense. Such a crime must be construed and punished according to the law existing at the time of the commission thereof in the same manner as if this title had not been enacted.

(Laws 1833, Cobb's 1851 Digest, p. 838; Code 1863, § 4550; Code 1868, § 4570; Code 1873, § 4664; Code 1882, § 4664; Penal Code 1895, § 18; Penal Code 1910, § 18; Code 1933, § 26-103; Code 1933, § 26-103, enacted by Ga. L. 1968, p. 1249, § 1.)

JUDICIAL DECISIONS

Cited in Ponder v. State, 121 Ga. App. 788, 175 S.E.2d 55 (1970); Nestor v. State, 122 Ga. App. 290, 176 S.E.2d 637 (1970); Blankenship v. State, 123 Ga. App. 496, 181 S.E.2d 544 (1971); Gunn v. State, 227 Ga. 786, 183 S.E.2d 389 (1971); Sadler v. State, 124 Ga. App. 266, 183 S.E.2d 501 (1971); Price v. State, 124 Ga. App. 850, 186 S.E.2d 360 (1971); Papp v. State, 129 Ga. App. 718, 201 S.E.2d 157 (1973); State v. Hasty, 158 Ga. App. 464, 280 S.E.2d 873 (1981); State v. Williams, 172 Ga. App. 708, 324 S.E.2d 557 (1984); Moton v. State, 242 Ga. App. 397, 530 S.E.2d 31 (2000).

16-1-10. Punishment for crimes for which punishment not otherwise provided.

Any conduct that is made criminal by this title or by another statute of this state and for which punishment is not otherwise provided, shall be punished as for a misdemeanor.

(Orig. Code 1863, § 4395; Ga. L. 1865-66, p. 233, § 2; Code 1868, § 4436; Code 1873, § 4509; Code 1882, § 4509; Penal Code 1895, § 334; Penal Code 1910, § 339; Code 1933, § 26-5001; Code 1933, § 26-104, enacted by Ga. L. 1968, p. 1249, § 1.)

Cross references.

- Punishment for misdemeanors generally, § 17-10-3.

JUDICIAL DECISIONS

Cited in MacDougald v. State, 124 Ga. App. 619, 184 S.E.2d 687 (1971); Blair v. State, 127 Ga. App. 111, 192 S.E.2d 542 (1972); Cook v. State, 256 Ga. 808, 353 S.E.2d 333 (1987); English v. State, 282 Ga. App. 552, 639 S.E.2d 551 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 1.

ALR.

- Civil and criminal liability of soldiers, sailors, and militiamen, 143 A.L.R. 1530.

16-1-11. Effect of repeal or amendment of criminal law on prosecution of prior violations.

The repeal, repeal and reenactment, or amendment of any law of this state which prohibits any act or omission to act and which provides for any criminal penalty therefor, whether misdemeanor, misdemeanor of a high and aggravated nature, or felony, shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment unless the General Assembly expressly declares otherwise in the Act repealing, repealing and reenacting, or amending such law.

(Code 1981, §16-1-11, enacted by Ga. L. 1987, p. 260, § 1.)

Editor's notes.

- The title of Ga. L. 1987, p. 260, declares the purpose of the Act which enacted this Code section is "to supersede and abolish the rule of common law stated by the Supreme Court of Georgia in the case of Robinson v. State, 256 Ga. 564, 350 S.E.2d 464 (1986)."

OPINIONS OF THE ATTORNEY GENERAL

Prosecution of persons designated habitual violators before January 1, 1991.

- Holding of the Court of Appeals in Galletta v. Hardison, 168 Ga. App. 36 (1983) is applicable solely to appeals from driver's license revocations by the Georgia Department of Public Safety and individuals designated as habitual violators prior to January 1, 1991, based upon one or more convictions for driving with a suspended license who drive prior to obtaining reinstatement of their driving privileges by the Department of Public Safety. These groups are subject to felony prosecution pursuant to O.C.G.A. § 40-5-58(c) notwithstanding the 1990 amendment to that Code Section. 1992 Op. Att'y Gen. No. U92-5.

16-1-12. Restrictions on contingency fee compensation of attorney appointed to represent state in forfeiture action.

  1. In any forfeiture action brought pursuant to this title, an attorney appointed by the Attorney General or district attorney as a special assistant attorney general, special assistant district attorney, or other attorney appointed to represent this state in such forfeiture action shall not be compensated on a contingent basis by a percentage of assets which arise or are realized from such forfeiture action. Such attorneys shall also not be compensated on a contingent basis by an hourly, fixed fee, or other arrangement which is contingent on a successful prosecution of such forfeiture action.
  2. Nothing in this Code section shall be construed as prohibiting or otherwise restricting the Attorney General or a district attorney from appointing special assistants or other attorneys to assist in the prosecution of any action brought pursuant to this title.

(Code 1981, §16-1-12, enacted by Ga. L. 2012, p. 1035, § 2/SB 181.)

Editor's notes.

- Ga. L. 2012, p. 1035, § 3/SB 181, approved by the Governor May 2, 2012, provided that the effective date of this Code section is July 1, 2011. See Op. Att'y Gen. No. 76-76 for construction of effective date provisions that precede the date of approval by the Governor.

CHAPTER 2 CRIMINAL LIABILITY

Article 1 Culpability.
Article 2 Parties to Crimes.

ARTICLE 1 CULPABILITY

16-2-1. "Crime" defined.

  1. A "crime" is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.
  2. Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.

(Laws 1833, Cobb's 1851 Digest, p. 779; Code 1863, § 4188; Code 1868, § 4227; Code 1873, § 4292; Code 1882, § 4292; Penal Code 1895, § 31; Penal Code 1910, § 31; Code 1933, § 26-201; Code 1933, § 26-601, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2004, p. 57, § 2.)

Editor's notes.

- Ga. L. 2004, p. 57, § 6, not codified by the General Assembly, provides that the amendment by that Act shall apply to all crimes which occur on or after July 1, 2004.

Law reviews.

- For article on 2004 amendment of this Code section, see 21 Ga. St. U. L. Rev. 45 (2004). For note, "I Tolled You I Had More Time!: The Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.C.G.A. § 9-3-99," see 68 Mercer L. Rev. 557 (2017).

JUDICIAL DECISIONS

General Consideration

Only violations of public laws are recognized as criminal offenses. Jenkins v. State, 14 Ga. App. 276, 80 S.E. 688 (1914).

An act specially authorized by public law cannot be a crime. Vason v. South Carolina R.R., 42 Ga. 631 (1871).

New felonies become subject to existing rules of procedure.

- When statute is passed defining a new felony, it becomes incorporated in the body of the criminal law, subject to all rules of procedure applicable to other crimes of like grade. Bishop v. State, 118 Ga. 799, 45 S.E. 614 (1903).

Infractions of local laws and ordinances have no place in the Penal Code. Pearson v. Wimbish, 124 Ga. 701, 52 S.E. 751, 4 Ann. Cas. 501 (1906).

Penalty is not an ingredient of a crime, only a consequence of its commission. Jenkins v. State, 14 Ga. App. 276, 80 S.E. 688 (1914).

Absent intention or criminal negligence, there is no crime, notwithstanding fact that criminal act has been committed. Cargile v. State, 194 Ga. 20, 20 S.E.2d 416, answer conformed to, 67 Ga. App. 610, 21 S.E.2d 326 (1942).

Every crime consists in union or joint operation of act and intention. Mallette v. State, 119 Ga. App. 24, 165 S.E.2d 870 (1969).

Statutory reference in indictment not required.

- Indictment need not specify statute drawn under since offense charged shall be determined by allegations. Turner v. State, 233 Ga. 538, 212 S.E.2d 370 (1975).

In order to charge statutory offenses, indictments are not constitutionally required to cite or name statute. Turner v. State, 233 Ga. 538, 212 S.E.2d 370 (1975).

Failure to charge jury in exact language of section is not error when the court fully instructs on essential elements of the crime charged including the requisite intent. Coleman v. State, 137 Ga. App. 689, 224 S.E.2d 878 (1976); Redd v. State, 141 Ga. App. 888, 234 S.E.2d 812 (1977); Ward v. State, 271 Ga. 648, 520 S.E.2d 205 (1999).

Failure to include instruction on intent.

- It was not error to omit, without request, a statement in the charge with regard to defendant's intent to commit the act, where the charge did include instructions on the statutory requirements of the offense in question. Nestor v. State, 122 Ga. App. 290, 176 S.E.2d 637 (1970).

Absent request, court need not specifically charge exact language of section.

- Failure to specifically charge exact language of former Code 1933, §§ 26-601 and 26-605 (see O.C.G.A. §§ 16-2-1 and16-2-6) was not reversible error absent request therefore and when subject of intent was fully charged. Smith v. State, 139 Ga. App. 660, 229 S.E.2d 74 (1976).

Inclusion in charge where omission or negligence are not part of crime charged.

- When an unchallenged charge to the jury included language mirroring O.C.G.A. § 16-2-1 in charging that a crime could consist of an omission to act or criminal negligence, two elements not involved in the defendant's case, but the charge as a whole properly instructed on the burden of proof and the elements of the crimes and omitted the language at issue on a recharge, there was no substantial or reversible error. Ramey v. State, 235 Ga. App. 690, 510 S.E.2d 358 (1998).

Violations of municipal ordinances and administrative regulations are not crimes.

- Purpose of former Code 1933, § 26-201 was to make clear that only violations of state statutes, and not of municipal ordinances and administrative regulations, were crimes. Turner v. State, 233 Ga. 538, 212 S.E.2d 370 (1975); Horace Mann Ins. Co. v. Drury, 213 Ga. App. 321, 445 S.E.2d 272 (1994).

Former Code 1933, § 26-201 refered only to violations of statutes of this state, thereby excluding municipal ordinances and administrative regulations. State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979).

Cited in Steele v. State, 227 Ga. 653, 182 S.E.2d 475 (1971); Gunn v. State, 227 Ga. 786, 183 S.E.2d 389 (1971); Teasley v. State, 228 Ga. 107, 184 S.E.2d 179 (1971); Robertson v. State, 127 Ga. App. 6, 192 S.E.2d 502 (1972); K.M.S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1973); Gentry v. State, 129 Ga. App. 819, 201 S.E.2d 679 (1973); Golson v. State, 130 Ga. App. 577, 203 S.E.2d 917 (1974); Bentley v. State, 131 Ga. App. 425, 205 S.E.2d 904 (1974); Tift v. State, 133 Ga. App. 455, 211 S.E.2d 409 (1974); Snell v. McCoy, 135 Ga. App. 832, 219 S.E.2d 482 (1975); Johnson v. State, 235 Ga. 486, 220 S.E.2d 448 (1975); Proctor v. State, 235 Ga. 720, 221 S.E.2d 556 (1975); Bradley v. State, 137 Ga. App. 670, 224 S.E.2d 778 (1976); Wiggins v. State, 139 Ga. App. 98, 227 S.E.2d 895 (1976); Dodson v. State, 237 Ga. 607, 229 S.E.2d 364 (1976); Brooks v. State, 144 Ga. App. 97, 240 S.E.2d 593 (1977); Stone v. State, 145 Ga. App. 816, 245 S.E.2d 62 (1978); Barrett v. State, 146 Ga. App. 207, 245 S.E.2d 890 (1978); Clary v. State, 151 Ga. App. 301, 259 S.E.2d 697 (1979); Puritan/Churchill Chem. Co. v. Eubank, 245 Ga. 334, 265 S.E.2d 16 (1980); Hardeman v. State, 154 Ga. App. 364, 268 S.E.2d 415 (1980); Jones v. State, 154 Ga. App. 806, 270 S.E.2d 201 (1980); Morrow v. State, 155 Ga. App. 574, 271 S.E.2d 707 (1980); Craft v. State, 158 Ga. App. 745, 282 S.E.2d 203 (1981); Williams v. State, 159 Ga. App. 865, 285 S.E.2d 597 (1981); Mitchell v. State, 162 Ga. App. 780, 293 S.E.2d 48 (1982); Brinson v. State, 163 Ga. App. 567, 295 S.E.2d 536 (1982); Coker v. State, 163 Ga. App. 799, 295 S.E.2d 538 (1982); Fambro v. State, 164 Ga. App. 359, 297 S.E.2d 111 (1982); Johnson v. State, 170 Ga. App. 433, 317 S.E.2d 213 (1984); Cherry v. State, 174 Ga. App. 145, 329 S.E.2d 580 (1985); Whitley v. State, 176 Ga. App. 364, 336 S.E.2d 301 (1985); Lewis v. State, 180 Ga. App. 369, 349 S.E.2d 257 (1986); Daughtry v. State, 180 Ga. App. 711, 350 S.E.2d 53 (1986); Abernathy v. State, 191 Ga. App. 350, 381 S.E.2d 537 (1989); Howard v. State, 192 Ga. App. 813, 386 S.E.2d 667 (1989); Frost v. State, 200 Ga. App. 267, 407 S.E.2d 765 (1991); Bohannon v. State, 230 Ga. App. 829, 498 S.E.2d 316 (1998); Mitchell v. State, 233 Ga. App. 92, 503 S.E.2d 293 (1998); Stokes v. State, 232 Ga. App. 232, 501 S.E.2d 599 (1998); Barnes v. Greater Ga. Life Ins. Co., 243 Ga. App. 149, 530 S.E.2d 748 (2000); Maynor v. State, 257 Ga. App. 151, 570 S.E.2d 428 (2002); State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (2012); State v. Ashley, 299 Ga. 450, 788 S.E.2d 796 (2016); Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018); Nordahl v. State, 306 Ga. 15, 829 S.E.2d 99 (2019).

Intent

Crimes require act which violates the law, and intent to do the act done. Owens v. State, 120 Ga. 296, 48 S.E. 21 (1904); Mitchell v. State, 20 Ga. App. 778, 93 S.E. 709 (1917); James v. State, 153 Ga. 556, 112 S.E. 899 (1922).

General intent is essential element of all state crimes except those involving criminal negligence. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).

General intent refers to proposition that one intends consequences of one's voluntary physical actions. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).

Word "intention" means an intention to commit the act statutorily prohibited, not an intention to violate a penal statute. Schwerdtfeger v. State, 167 Ga. App. 19, 305 S.E.2d 834 (1983).

Criminal intent is simply intention to do act which legislature has prohibited. Herbert v. State, 45 Ga. App. 340, 164 S.E. 452 (1932).

Criminal intent is an essential element in every crime where criminal negligence is not involved. Bacon v. State, 209 Ga. 261, 71 S.E.2d 615 (1952).

Intention is manifested by circumstances surrounding perpetration of offense.

- Sometimes intention can be proved, sometimes it can only be inferred or presumed, and general rule is that intention will be manifested by circumstances connected with perpetration of offense. Mallette v. State, 119 Ga. App. 24, 165 S.E.2d 870 (1969).

Term "maliciously" includes intent. Maltbie v. State, 139 Ga. App. 342, 228 S.E.2d 368 (1976).

Intent with which act is done is peculiarly a question of fact for determination by jury and although finding that accused had intent to commit crime charged may be supported by evidence which is exceedingly weak and unsatisfactory, verdict will not be set aside on that ground. Mallette v. State, 119 Ga. App. 24, 165 S.E.2d 870 (1969).

One mentally incapable of having intent cannot commit a crime.

- One too young, too feeble-minded, or otherwise mentally incapable of having an intent, cannot commit a crime. Miley v. State, 118 Ga. 274, 45 S.E. 245 (1903).

Statute does not make guilty knowledge indispensable to conviction of crime.

- There are certain cases, especially those which relate to public safety, in which commission of prohibited act, whether knowingly or not, makes actor guilty. General Oil Co. v. Crowe, 54 Ga. App. 139, 187 S.E. 221 (1936).

Scienter is not an indisputable element of the intent referred to in this statute; it is sufficient if the act intended and committed constitutes a violation of the law. Ware v. State, 6 Ga. App. 578, 65 S.E. 333 (1909); Mitchell v. State, 20 Ga. App. 778, 93 S.E. 709 (1917); Nelson v. State, 27 Ga. App. 50, 107 S.E. 400 (1921).

If scienter is made part of offense by statute, it must be established as a necessary element of the crime. One's belief in the lawfulness of the act done, coupled with exercise of reasonable diligence to ascertain the truth, may negative scienter. Robinson v. State, 6 Ga. App. 696, 65 S.E. 792 (1907).

Intent need not be alleged specifically if, from language employed, it must necessarily be inferred that a criminal intent existed. Cason v. State, 16 Ga. App. 820, 86 S.E. 644 (1914).

Intent may be inferred from circumstances. Steadman v. State, 18 Ga. 736, 8 S.E. 420 (1888).

Intent may be ascertained by acts and conduct. Lawrence v. State, 68 Ga. 289 (1881).

Intent may be presumed when it is the natural and necessary consequence of act done. Marshall v. State, 59 Ga. 154 (1877); Freeman v. State, 70 Ga. 736 (1883); Lee v. State, 102 Ga. 221, 29 S.E. 264 (1897).

Culpable neglect may take the place of positive intent in constituting an act a crime; and even where an act is committed by misfortune or accident, in order to free it from the imputation of crime, it must be made satisfactorily to appear that it did not result from evil design, intention, or culpable neglect. Loeb v. State, 75 Ga. 258 (1885).

When the defendant denies committing crime, charge as to intent not required.

- Judge is not required to charge as to intent when it is not in issue because defendant never contended to have committed the acts unintentionally, but rather denied having committed the act at all. Redd v. State, 141 Ga. App. 888, 234 S.E.2d 812 (1977).

When the defendant acknowledged intent, erroneous charge as to intent was harmless.

- Error, if any, in jury charge on presumed intent in trial for malice murder was harmless since the petitioner pled self-defense at trial and acknowledged that the homicide was intentional. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).

Intent in aggravated sodomy case.

- Trial judge was authorized to find beyond a reasonable doubt that defendant acted with the criminal intent to commit the prohibited act of aggravated sodomy by placing defendant's sexual organ in the victim's mouth with force and against the victim's will. Since there was no evidence that the trial court did not make the requisite finding regarding criminal intent, the appellate court found no error. Sims v. State, 267 Ga. App. 572, 600 S.E.2d 613 (2004).

Offenses of murder, voluntary manslaughter, and aggravated assault do not require that the necessary element of intent to kill or injure, as the case may be, must have been directed toward the person who was killed or injured. Cook v. State, 255 Ga. 565, 340 S.E.2d 843, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986).

Intent element of aggravated assault.

- Defendant's argument that the indictment against defendant charging defendant with aggravated assault was flawed because no intent was alleged was without merit. Aggravated assault with a deadly weapon did not require a specific criminal intent; rather, it only required a general intent to injure, and that general intent did not have to be expressly alleged. Bishop v. State, 266 Ga. App. 129, 596 S.E.2d 674 (2004).

Allegation that defendant "unlawfully" possessed cocaine was sufficient to encompass both the intent to commit the proscribed act and the knowledge necessary to form that intent. Dye v. State, 177 Ga. App. 813, 341 S.E.2d 469 (1986), overruled on other grounds, Eason v. State, 260 Ga. 445, 396 S.E.2d 492 (1990), overruled on other grounds, State v. Lucious, 271 Ga. 361, 518 S.E.2d 677 (1999).

Taking money from vehicle held separate offense from taking vehicle.

- Although money was in a van at the time the van was stolen, the jury was authorized to find that defendant was not then aware of its presence, and defendant's act of physically taking the money from its hiding place, coupled with the then present intent to steal it, was a second criminal act against the property of the victim, separate and distinct from the earlier theft of the van. Accordingly, the trial court did not err in failing to grant defendant's motion for a directed verdict of acquittal as to one of the counts of theft by taking. Cook v. State, 180 Ga. App. 139, 348 S.E.2d 687 (1986).

Intent in DUI case.

- Trial court erred in the court's charge to the jury because the charge had the effect of eliminating the jury's consideration of defendant's defense that defendant was not driving or in actual physical control of the car. Defendant claimed that the car's movement was "an accident" caused by defendant's falling headfirst onto the floorboard. Virgil v. State, 227 Ga. App. 96, 488 S.E.2d 694 (1997).

Verdict of "intent" insufficient for conviction for "attempt."

- When the jury's verdict found the defendant "guilty" of only the "intent" to traffic in narcotics, a rewritten verdict for "attempt" was a mere nullity under the double jeopardy provision of the bill of rights since the original verdict amounted to an acquittal. Douglas v. State, 206 Ga. App. 740, 426 S.E.2d 628 (1992).

Age of victim impacts ability to consent.

- When the 14-year-old victim allegedly consented to having sex with the defendant, the sexual molestation conviction under O.C.G.A. § 16-6-4(a) was supported by sufficient evidence; under O.C.G.A. § 16-2-1, consent by the victim was irrelevant due to the inability of the victim to legally consent to intercourse, and it was for the jury to determine, in accordance with the testimony of at least a single witness pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), whether the defendant's conduct was immoral or indecent under O.C.G.A. § 16-6-4(a). Slack v. State, 265 Ga. App. 306, 593 S.E.2d 664 (2004).

Criminal Negligence

Words "criminal negligence" were properly included in jury charge.

- Words "criminal negligence" were an integral part of the definition of a crime, and were properly included in a jury charge on former Code 1933, § 26-601. Smith v. State, 238 Ga. 146, 231 S.E.2d 757 (1977); Owen v. State, 266 Ga. 312, 467 S.E.2d 325 (1996).

Instruction on definition of "crime."

- Although "criminal negligence" was not an issue in a murder trial, the trial court did not err by employing the entirety of the language of O.C.G.A. § 16-2-1 in its charge to the jury on the general definition of "crime." Harper v. State, 182 Ga. App. 760, 357 S.E.2d 117 (1987).

Pattern jury instruction on "definition of crime," which referenced criminal negligence, was not improper because the instruction was an accurate statement of the law; and, although the instruction made a passing reference to criminal negligence, there was no further mention of the term in the jury charge, and the jury was otherwise properly instructed on the general law of intent, as well as the intent required to prove malice murder. Walker v. State, 308 Ga. 33, 838 S.E.2d 792 (2020).

Criminal negligence defined.

- Criminal negligence is the reckless disregard of consequences, or a heedless indifference to rights and safety of others and a reasonable foresight that injury would probably result. Collins v. State, 66 Ga. App. 325, 18 S.E.2d 24 (1941).

Criminal negligence means not merely such negligence as might be foundation of a damage suit, but reckless and wanton negligence and of such character as to show utter disregard for safety of others who might reasonably be expected to be injured thereby. Keye v. State, 136 Ga. App. 707, 222 S.E.2d 172 (1975).

Criminal negligence is something more than ordinary negligence which would authorize recovery in civil action. Collins v. State, 66 Ga. App. 325, 18 S.E.2d 24 (1941).

Term "heedless disregard" includes criminal negligence. Maltbie v. State, 139 Ga. App. 342, 228 S.E.2d 368 (1976).

Denial of necessary and appropriate medical care for child.

- Sufficient evidence supported the defendant's cruelty to children convictions based on being criminally negligent in failing to seek medical care for a defendant's child after the child was bitten by a dog and a human and suffered excessive vomiting, and the defendant knew for several days but did not seek medical attention for the child. Morast v. State, 323 Ga. App. 808, 748 S.E.2d 287 (2013).

Defendant's guilty plea to second degree cruelty to children in violation of O.C.G.A. § 16-5-70(c) was not knowing and voluntary because the defendant was not adequately informed that the defendant's failure to seek medical care for the defendant's child after a boyfriend broke the child's leg was required to rise to a level of willful, wanton, or reckless disregard for the child's safety under O.C.G.A. § 16-2-1(b). Kennedy v. Primack, 299 Ga. 698, 791 S.E.2d 819 (2016).

Charge on criminal negligence warranted.

- In light of the extensive jury instructions that emphasized the requirement for finding that the defendant knew of the prostitution activities at the employee's business before the jury could convict the defendant of keeping a place of prostitution, there was no error in giving the O.C.G.A. § 16-2-1 charge on the definition of a crime that referenced criminal negligence. Ahn v. State, 279 Ga. App. 501, 631 S.E.2d 711 (2006).

Court erred by denying the defendant's petition for habeas relief from an aggravated assault conviction because appellate counsel's failure to raise the issue that the trial court erred by failing to charge the jury on negligence was not subjectively a strategic decision but was based upon counsel's lack of familiarity with the relevant law and was deficient. Sullivan v. Kemp, 293 Ga. 770, 749 S.E.2d 721 (2013).

Instruction on criminal negligence unwarranted.

- When the rightful owner of the parcel on which the defendant resided hired a tow truck company to enter the property to remove old vehicles parked on the parcel, and the defendant shot and killed one of the tow truck company employees, the trial court did not plainly err in refusing to give the defendant's requested charges on criminal negligence and on involuntary manslaughter as a lesser included offense of murder because, by finding the defendant guilty of malice murder, the jury found beyond a reasonable doubt that the defendant shot at the victim with malice aforethought; and the defendant did not show that the failure of the trial court to give the charges at issue likely affected the outcome of the trial. Reed v. State, 304 Ga. 400, 819 S.E.2d 44 (2018).

Defendant acted with requisite criminal negligence.

- Evidence was sufficient to support the defendant's conviction for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c), because the evidence authorized a finding that the defendant acted with the requisite criminal negligence under O.C.G.A. §§ 16-2-1(b) and16-5-70(c) in causing the victim to sustain severe, painful burns to the victim's body; the state's expert testified that the victim's burns were inconsistent with the defendant's claim that the incident leading to the victim's injuries was merely accidental. Wells v. State, 309 Ga. App. 661, 710 S.E.2d 860 (2011).

Evidence was sufficient to convict the mother of two counts of cruelty to children in the second degree as to the first child because the child felt lonely and isolated from the child's siblings while the child was locked in a basement closet for about two years, with only one or two daily visits from a parent; the window in the room was covered; the child's treating pediatrician testified that the child suffered from osteopenia in the wrists, knees, and legs, a rare condition that was likely caused by the child's confinement to a small room, which prohibited the child from playing, running, and exercising; and the child had significantly low levels of Vitamin D in the child's body, which could have caused the child's weakness and fatigue. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).

Requisite criminal negligence in leaving young child on couch.

- Evidence was sufficient to convict the defendant of second-degree cruelty to children because the defendant's failure to secure the very young victim before leaving the victim on a couch for 15 minutes while the defendant used the bathroom exposed the victim to an obvious risk of injury of being smothered by couch cushions; and the defendant's actions showed the defendant's reckless disregard for the victim's safety. Scott v. State, 307 Ga. 37, 834 S.E.2d 88 (2019).

Criminal negligence not found in 45 minute phone call.

- Evidence was insufficient to convict the defendant because the state did not show that the defendant's conduct while the two children were under the defendant's supervision constituted criminal negligence supporting the defendant's convictions for second degree cruelty to children and for reckless conduct related to the drowning deaths of the two children as it could not be said that taking a 45-minute phone call in itself constituted a failure to reasonably supervise the children; the defendant confirmed that the children were in an upstairs room playing when the defendant initiated the phone call; and the defendant had told the children they could not go swimming and there was no showing that the children had a propensity to disobey the defendant. Corvi v. State, 296 Ga. 557, 769 S.E.2d 388 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 1 et seq.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, §§ 28, 35, 41.

16-2-2. Effect of misfortune or accident on guilt.

A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.

(Laws 1833, Cobb's 1851 Digest, p. 779; Code 1863, § 4198; Code 1868, § 4237; Code 1873, § 4302; Code 1882, § 4302; Penal Code 1895, § 40; Penal Code 1910, § 40; Code 1933, § 26-404; Code 1933, § 26-602, enacted by Ga. L. 1968, p. 1249, § 1.)

JUDICIAL DECISIONS

General Consideration

Logic of O.C.G.A. § 16-2-2 is questionable as in almost every circumstance an event that transpires by reason of "misfortune or accident" lacks the essential element of "any crime," which is the existence of a "criminal scheme or undertaking intention, or criminal negligence." Thus, it is difficult to comprehend how "any crime" can be "committed by misfortune or accident." Hamilton v. State, 260 Ga. 3, 389 S.E.2d 225 (1990).

Every person is presumed to intend natural and probable consequences of own conduct, particularly if that conduct be unlawful and dangerous to safety or lives of others. Keye v. State, 136 Ga. App. 707, 222 S.E.2d 172 (1975).

There are wanton or reckless states of mind, sometimes equivalent of specific intention to kill, and which may and should be treated by jury as amounting to such intention, when productive of violence likely to result in destruction of life. Keye v. State, 136 Ga. App. 707, 222 S.E.2d 172 (1975).

Crimes are not committed by accident.

- Jury instruction that crimes are not committed by accident was not erroneous, as such an instruction is an authorized reference to O.C.G.A. § 16-2-2. Stone v. State, 257 Ga. App. 306, 570 S.E.2d 715 (2002).

Defendant's request to charge the jury on accident was properly denied as the state's evidence indicated that defendant was the aggressor in the attack and that defendant intentionally threw a cup of liquid containing bleach into the victim's face; further, defendant admitted that defendant intentionally knocked the cup of bleach out of the victim's hand. Payne v. State, 273 Ga. App. 483, 615 S.E.2d 564 (2005).

Offense of murder may be committed when there is no actual intent to kill. Keye v. State, 136 Ga. App. 707, 222 S.E.2d 172 (1975).

Strict criminal liability.

- In a prosecution for driving an unsafe motor vehicle with defective equipment, the defense of accident did not apply. The fact that there was no criminal scheme, undertaking, or criminal negligence was not a defense to a strict liability criminal statute. Coates v. State, 216 Ga. App. 93, 453 S.E.2d 35 (1994).

After the defendant was charged with disobeying a traffic control device, rejection of an instruction under O.C.G.A. § 16-2-2 was proper because the charge was a strict liability offense. Arnold v. State, 228 Ga. App. 470, 491 S.E.2d 819 (1997).

Accidental death not attributable to conduct of defendant.

- Homicide by accident as defined in former Code 1933, § 26-602 does not include death from accidental means not attributable to any conduct, culpable or otherwise, on part of defendant. Johnson v. State, 239 Ga. 324, 236 S.E.2d 661 (1977).

Defendant's testimony suggesting that the victim died from a drug overdose and denying that defendant took any action to cause the victim's death by manual strangulation did not involve homicide by accident, but only death from accidental means not attributable to any conduct on the part of defendant; thus, this testimony did not raise the issue of accident or misfortune, but related solely to causation, and defendant was not entitled to a charge on the law of accident. Wilson v. State, 279 Ga. 104, 610 S.E.2d 66 (2005).

Decision to pursue accident defense not ineffective assistance.

- Defense counsel's decision to pursue an accident defense was an informed strategic choice and was not ineffective assistance of counsel as the decision was not due to a misunderstanding of the law or the facts of the case; rather, counsel consulted with the defendant and learned that the defendant contended that the gun accidentally discharged. There was no evidence that the defendant pointed the gun at the victim before the shooting occurred and there was no dispute as to how the fatal injury was inflicted. Mayberry v. State, 281 Ga. 144, 635 S.E.2d 736 (2006).

Consideration of section in connection with involuntary manslaughter section.

- When the court attempts to apply involuntary manslaughter section, the court must consider in connection therewith former Code 1933, § 26-404 (see now O.C.G.A. § 16-2-2), the ordinary care sections, former Code 1933, §§ 105-201 and 105-401 (see now O.C.G.A. §§ 51-1-2 and51-3-1), together with the section which specifies indispensable ingredients of crime. Geele v. State, 203 Ga. 369, 47 S.E.2d 283 (1948).

Failure to charge accident in child molestation trial.

- When there was evidence that defendant may have unintentionally touched the victim while sleeping in the same bed with the victim, and the record reflected that the accident was the entire thrust of defendant's defense, the trial court was required to give appropriate instructions on this principle to call the defense to the jury's attention. Metts v. State, 210 Ga. App. 197, 435 S.E.2d 525 (1993).

In a child molestation case, the defendant was not entitled to an accident defense jury instruction under O.C.G.A. § 16-2-2; the defense relied upon by the defendant at trial was not that the illegal conduct occurred by accident but that the illegal conduct never happened at all. Haynes v. State, 281 Ga. App. 81, 635 S.E.2d 370 (2006).

In a child molestation case, the trial court did not plainly err in failing to sua sponte charge the jury on the defense of accident because accident was not the defendant's sole defense to the charge that the defendant molested the victim by touching the victim's vaginal area with the defendant's hand as the state presented evidence that the defendant molested the victim in that manner on several occasions, and the defendant's accident defense addressed only one of those instances; further, the defendant did not show that the trial court's failure to charge the jury on accident likely affected the outcome of the proceedings. Pinkston v. State, 353 Ga. App. 88, 834 S.E.2d 571 (2019).

DUI offense.

- Trial court erred in the court's charge to the jury because the charge had the effect of eliminating the jury's consideration of the defendant's defense that the defendant was not driving or in actual physical control of the car. Defendant claimed that the car's movement was "an accident" caused by the defendant's falling headfirst onto the floorboard. Virgil v. State, 227 Ga. App. 96, 488 S.E.2d 694 (1997).

Driving under the influence and failure to maintain lane convictions were affirmed because defendant was not entitled to a jury charge on the law of accident as the charges related not to the accident but to defendant's condition while driving. Moreover, the defendant did not admit to driving under the influence or failure to maintain a lane, and, as a result, defendant had no right to a charge of accident with regard to these crimes. Stefanell v. State, 263 Ga. App. 412, 587 S.E.2d 868 (2003).

In a prosecution for driving under the influence and making an improper lane change, because the defendant did not request instructions on accident and justification, the trial court did not err in failing to give them; moreover, because the jury was charged on involuntary intoxication, the failure to charge on accident was not harmful as a matter of law. Walker v. State, 280 Ga. App. 393, 634 S.E.2d 177 (2006).

Relevant evidence to defendant's defense of accident.

- In connection with defendant's conviction for reckless driving, causing serious bodily injury due to reckless driving, and other crimes, the trial court abused the court's discretion in granting the state's motion in limine to exclude defendant's evidence of the design of the intersection as such evidence was relevant to defendant's defense of accident. Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008).

Malfunction of light showing green lights in both directions is not accident defense.

- When the case arose from an intersection collision between a car which the defendant drove and another car, because the trial court correctly and repeatedly charged that the defendant could be convicted only if the state proved beyond a reasonable doubt that the stop light facing the defendant was red, any defense based upon the light being green when the defendant went through it was not an accident defense; logically, one cannot be convicted of running a red light if the light was, in fact, green; accordingly, the defendant's contention that there was a malfunction of the light showing green lights in both directions did not give rise to the defense of accident. Hoffer v. State, 192 Ga. App. 378, 384 S.E.2d 902, cert. denied, 192 Ga. App. 902, 385 S.E.2d 307 (1989).

Charge on homicide by accident does not conflict with charge on law of reasonable doubt. Jones v. State, 140 Ga. 478, 79 S.E. 114 (1913).

Charging O.C.G.A.

§ 16-2-2 does not cure omission to charge law of voluntary manslaughter. - Instruction charging this section does not cure failure to charge law of manslaughter when required. Freeman v. State, 158 Ga. 369, 123 S.E. 126 (1924).

Instruction which embraces law embodied in this section does not cure omission of court to charge law of involuntary manslaughter, when latter grade of homicide is involved in case. Jackson v. State, 43 Ga. App. 468, 159 S.E. 293 (1931).

Charge on accident using words "any neglect" rather than "culpable neglect" is error.

- Charge that "No one can be convicted for an accident unmixed with any neglect" was error in that court used words "any neglect" instead of words "culpable neglect," and "any neglect" is patently a broader expression than "culpable neglect." Dunahoo v. State, 46 Ga. App. 310, 167 S.E. 614 (1933).

When essential elements of crime are charged, statute need not be charged absent request.

- Charge of O.C.G.A. § 16-2-2 is not required in absence of timely written request when the court charges on essential elements of the crime with which the defendant is charged, including necessity of intent, with which the crime is committed. Whigham v. State, 131 Ga. App. 261, 205 S.E.2d 467 (1974), overruled on other grounds, Harris v. State, 145 Ga. App. 675, 244 S.E.2d 620 (1978); Henderson v. State, 141 Ga. App. 430, 233 S.E.2d 505 (1977).

Charge not required where defendant did nothing by accident or mistake.

- Although there may be evidence that the defendant's sister accidentally left the diazepam in defendant's possession, where there is nothing to indicate that the defendant personally did anything by accident or mistake, a charge on accident or misfortune is not required, particularly in the absence of a request for one. Sampson v. State, 165 Ga. App. 833, 303 S.E.2d 77 (1983).

Although defendant may not have initially acted aggressively toward the victim, by defendant's own admission the victim was attempting to run from defendant at the time defendant intentionally struck the victim again with a gun and the gun discharged. Thus, notwithstanding defendant's contention that accident constituted defendant's sole defense, the trial court was not required to give a charge thereon since it was not authorized by the evidence. Gaston v. State, 209 Ga. App. 477, 433 S.E.2d 306 (1993).

Trial court was not obligated to instruct the jury as to an accident defense since the defendant tried to remain locked in defendant's prison cell and injured a corrections officer when the officer tried to get defendant out of the cell after the officer threatened to place the defendant in a padded cell if the defendant did not quit yelling. Grant v. State, 257 Ga. App. 678, 572 S.E.2d 38 (2002).

Trial court did not err by failing to instruct the jury on the defenses of accident and justification as the defendant denied shaking the baby and, given the undisputed evidence regarding the number and severity of the child's injuries, the amount of force required to inflict the injuries, and that such injuries could not have been inflicted by accident, it was unlikely the jury would have found in the defendant's favor on either defense. Noel v. State, 297 Ga. 698, 777 S.E.2d 449 (2015).

Harmless error found.

- Any error in the failure to charge accident in a situation in which the gun going off and hitting the first officer as well as the police vehicle could be deemed an "accident" if defendant did not intend those results was harmless as the first officer was not shot and defendant was acquitted of the charges related to the shooting of the second officer and the police vehicle. Mills v. State, 273 Ga. App. 699, 615 S.E.2d 824 (2005).

Charge not required where participation in crime denied.

- Defendant's denial of participation in any manner in the crime, accidentally, mistakenly, or otherwise was inconsistent with the defendant's request to charge that one is not guilty of a crime if the act is committed by misfortune or accident. Gann v. State, 190 Ga. App. 82, 378 S.E.2d 369 (1989).

With regard to a defendant's convictions for felony murder, with the underlying felony being rape, among other crimes, the trial court did not err by refusing the defendant's request to instruct the jury that the defendant could not be found guilty if the victim's death was the result of an accident as such a defense was not available to the defendant since the defendant did not admit to the victim's killing but, instead, denied any involvement in the victim's death. Mangrum v. State, 285 Ga. 676, 681 S.E.2d 130 (2009).

Trial court did not err by refusing to give the defendant's requested charge on misfortune or accident because the defendant, who was charged with driving under the influence, reckless driving, and failure to maintain lane, was not entitled to a charge that the accident was unavoidable; because the defendant did not admit to committing any act that constituted the offenses with which the defendant was charged, the defendant was not entitled to an instruction on accident. Davis v. State, 301 Ga. App. 484, 687 S.E.2d 854 (2009), cert. dismissed, No. S10C0633, 2010 Ga. LEXIS 339 (Ga. 2010).

Trial court did not err in refusing to give the defendant's requested charge on accident under O.C.G.A. § 16-2-2 because the defendant repeatedly denied striking any vehicle in a parking lot. Sevostiyanova v. State, 313 Ga. App. 729, 722 S.E.2d 333, cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).

Trial court did not err by refusing to give the defendant's requested charge on the sole defense of accident because the defendant testified at trial and denied driving recklessly or with any disregard for the safety of other persons or property and the defense is only available when the defendant admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Lauderback v. State, 320 Ga. App. 649, 740 S.E.2d 377 (2013).

Collision during police chase not accident.

- In a prosecution for reckless conduct and battery arising from collisions occurring during a police chase, defendant was not entitled to a charge based on the defense that the collisions were accidents. Helton v. State, 216 Ga. App. 748, 455 S.E.2d 848 (1995).

Court must charge jury on accident when issue raised by defendant's testimony.

- When the defendant's testimony is sufficient to raise a jury question as to whether physical encounter is an accident or an aggravated assault with a deadly weapon, it is harmful error for the court to fail to give any charge to the jury on an accident. Dotson v. State, 144 Ga. App. 113, 240 S.E.2d 238 (1977).

Failure to charge O.C.G.A. § 16-2-2 as a defense when such defense was supported by evidence and defendant's counsel had made a timely written request for the instruction was reversible error. Taylor v. State, 164 Ga. App. 660, 297 S.E.2d 755 (1982).

When accident is a main theory of defense, law relative thereto must be charged.

- When misadventure and accident was one of the main theories of the defense, and was involved by the evidence, it was error to omit to charge the law relative thereto, with or without a request. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936).

Charge required when sole defense is accident.

- Even without request, when the defendant's sole defense is accident, the trial court must give appropriate instructions on this principle to call the defense to the jury's attention, and enable the jury to intelligently consider it. Metts v. State, 210 Ga. App. 197, 435 S.E.2d 525 (1993).

Evidence of criminal design.

- Homicide by misadventure, where the law absolves the slayer and holds the slayer guiltless of the crime, must not only exclude any evil design or intention on the slayer's part, but must also show an absence of culpable neglect, whether the evidence adduced to show an accidental killing may warrant an instruction upon manslaughter is a different question. Allen v. State, 134 Ga. 380, 67 S.E. 1038 (1910).

Evidence insufficient to establish accident.

- Sufficient evidence negated the defense of accident, O.C.G.A. § 16-2-2, where the victim who was shot by defendant while hunting waved to signal defendant before the gun was fired and where defendant was hunting while on medication that could have caused mental and physical impairment; the jury also could have considered defendant's actions after the shooting in removing the victim's orange vest, hiding two guns, failing to aid the victim, and failing to alert paramedics of the victim's location. Wilson v. State, 279 Ga. App. 136, 630 S.E.2d 640 (2006).

Evidence was sufficient to reject the defendant's accident defense and to convict the defendant of malice murder and other crimes in connection with the shooting death of the victim because the defendant's 21-year-old neighbor gave the 15-year-old defendant a loaded .38-caliber revolver; when the victim met the defendant the next afternoon, the defendant led the victim to where the defendant was keeping the gun and shot the victim; and, although the defendant's firearms expert testified that an accidental discharge was much more likely if the gun was cocked before being fired, the expert conceded on cross-examination that if somebody pulled the hammer back, that person was about to shoot. Kosturi v. State, 296 Ga. 512, 769 S.E.2d 294 (2015).

Evidence was sufficient to reject the defense of accident and convict the defendant of malice murder because the defendant had a history of violence toward the victim, and the couple was arguing just before the shooting; two witnesses heard the gunshot and saw a man wearing clothes like those worn by the defendant standing outside of the victim's car as the victim fell; the revolver, which had the defendant's DNA on the grip, had not been cocked and required more than 10 pounds of pressure on the trigger to fire; and the defendant told the police that another man shot the victim, but the defendant later changed the defendant's account to admit to being the shooter while claiming that the defendant did not mean to shoot. Jones v. State, 304 Ga. 320, 818 S.E.2d 499 (2018).

Failure to charge the jury on the affirmative defense of accident was reversible error, where defendant's testimony was sufficient to raise a jury question as to whether any obstruction by defendant of a sheriff and sheriff's men was deliberate or accidental, i.e., caused by defendant's misfortune in being stricken ill while being confronted by the sheriff. Sapp v. State, 179 Ga. App. 614, 347 S.E.2d 354 (1986).

Trial court did not commit error by not charging the jury on accident and misfortune, as defendant did not submit a written request to charge on accident and misfortune and absent a written request it is not error for the trial court to fail to give an instruction. Colbert v. State, 263 Ga. App. 193, 587 S.E.2d 300 (2003).

Defendant's convictions for voluntary manslaughter, aggravated assault, and possession of a knife during the commission of a felony were reversed because the trial court erred in failing to charge the jury on the defense of accident as requested when that defense was raised by the evidence, and the Court of Appeals could not find that it was highly probable that the failure to give the requested charge did not contribute to the verdict; at least slight evidence supported the theory that the defendant armed oneself with a knife in order to fend off the victim's attack with a pipe wrench and that although the defendant was prepared to intentionally stab the victim in self-defense, the defendant did not do so, but the victim lunged at the defendant and was impaled on the knife. Hill v. State, 300 Ga. App. 210, 684 S.E.2d 356 (2009).

Trial court did not err in rejecting the defendant's request to instruct the jury on the affirmative defense of accident, O.C.G.A. § 16-2-2, since although the defendant said that the defendant did not fire a gun intentionally, the defendant also testified that the defendant climbed into bed with the victim holding a loaded handgun with the defendant's finger on the trigger because the defendant wanted the victim to understand the seriousness of the defendant's concerns about infidelity; while the defendant initially denied pointing the gun at the victim and said the defendant kept the gun by the defendant's side, the defendant later admitted that the defendant did point the gun at the victim's head and that the gun went off when the victim smacked the gun away, and misuse of a firearm in the manner described by the defendant showed a degree of culpability that constituted criminal negligence. Mills v. State, 287 Ga. 828, 700 S.E.2d 544 (2010).

In a vehicular homicide case, any error in the trial court's failure to charge the jury on the law of accident under O.C.G.A. § 16-2-2 was waived because the proposed charge was not in the record, and there was no evidence that it was the pattern charge, and the defendant failed to object after the charge was given as required by O.C.G.A. § 17-8-58(a). Rouen v. State, 312 Ga. App. 8, 717 S.E.2d 519 (2011).

Even if the evidence supported an instruction on accident, the trial court's refusal to give the instruction did not affect the outcome of the trial since the jury's conclusion that the defendant acted with malice necessarily meant that the jury would have rejected any accident defense. Thomas v. State, 297 Ga. 750, 778 S.E.2d 168 (2015).

Trial court's failure to give the defendant's requested charge on the principle of accident and misfortune to the jury constituted harmless error as there was no reasonable probability that the verdict would have been different because, to accept the defendant's theory of accident, the jury would have had to believe the defendant's account of the shooting - that the defendant's wife accidentally pulled the trigger and was shot while the defendant was trying to wrestle the gun away from the wife; and, when the jury found the defendant guilty of malice murder, the jury necessarily had to have discredited the defendant's account of the shooting. McClain v. State, 303 Ga. 6, 810 S.E.2d 77 (2018).

After the defendant was convicted of murder and related offenses arising out of the beating death of an 18-month-old child, the trial court did not err when the court failed to give the defendant's requested instructions on accident because evidence that the child might have fallen from the bed while sleeping and been injured did not involve homicide by accident but only death from accidental means not attributable to any conduct, culpable or otherwise, on the part of the defendant; and the defendant's admission that, in the days leading up to the child's death, the defendant had tripped over a board and fallen on top of the child did not account for the extent of the child's injuries and was not a basis for an accident instruction. Wade v. State, 304 Ga. 5, 815 S.E.2d 875 (2018).

Charge on accident held proper.

- There was no reason to reverse the defendant's convictions because the trial court properly instructed the jury on the defense of accident, and as such: (1) followed the language of O.C.G.A. § 16-2-2; (2) tracked the Suggested Pattern Jury Instructions; and (3) did not diminish the state's burden of proving all elements of the crimes charged beyond a reasonable doubt. Watkins v. State, 290 Ga. App. 41, 658 S.E.2d 812 (2008).

In a defendant's homicide prosecution, the trial court did not err in failing to give the complete charge on accident requested by the defendant as the court instructed the jury on accident as defined under O.C.G.A. § 16-2-2. Hamilton v. State, 297 Ga. App. 47, 676 S.E.2d 773 (2009).

Instruction on accident.

- Appellate court erred in reversing the defendant's conviction for vehicular homicide based on the appellant's failure to stop for a pedestrian in a crosswalk because those charges were strict liability offenses to which the accident defense did not apply since it was undisputed the appellant voluntarily drove into the crosswalk and struck the child. State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (2012).

When the defendant was convicted of malice murder and cruelty to children arising out of the death of the 17-month-old victim, the evidence presented did not authorize a charge on accident because the only evidence presented was that the victim's death was caused by tremendous blunt force trauma that could not have been the result of the victim falling off the bed or a self-inflicted injury; according to the medical examiner, the extensive internal injuries found in the victim's abdomen could not have been inflicted accidentally; and the defendant did not admit to others that the defendant struck the victim with tremendous force or even that the victim had fallen off the bed or onto any other object with such force. Kellam v. State, 298 Ga. 520, 783 S.E.2d 117 (2016).

Cited in Coggins v. State, 227 Ga. 426, 181 S.E.2d 47 (1971); Teasley v. State, 228 Ga. 107, 184 S.E.2d 179 (1971); Towns v. State, 127 Ga. App. 751, 195 S.E.2d 235 (1972); Spencer v. State, 231 Ga. 705, 203 S.E.2d 856 (1974); Ford v. State, 232 Ga. 511, 207 S.E.2d 494 (1974); Beckman v. State, 134 Ga. App. 118, 213 S.E.2d 527 (1975); D.C.A. v. State, 135 Ga. App. 234, 217 S.E.2d 470 (1975); Davis v. State, 138 Ga. App. 317, 226 S.E.2d 101 (1976); Smith v. State, 238 Ga. 146, 231 S.E.2d 757 (1977); Harris v. State, 145 Ga. App. 675, 244 S.E.2d 620 (1978); Kimbrell v. State, 148 Ga. App. 302, 250 S.E.2d 883 (1978); Smith v. State, 148 Ga. App. 634, 252 S.E.2d 62 (1979); Boling v. State, 244 Ga. 825, 262 S.E.2d 123 (1979); Johnson v. State, 151 Ga. App. 887, 262 S.E.2d 201 (1979); Davis v. State, 153 Ga. App. 847, 267 S.E.2d 263 (1980); Phillips v. State, 247 Ga. 13, 273 S.E.2d 606 (1981); Taylor v. State, 157 Ga. App. 212, 276 S.E.2d 691 (1981); Holt v. State, 247 Ga. 648, 278 S.E.2d 390 (1981); Pennamon v. State, 248 Ga. 611, 284 S.E.2d 403 (1981); Jones v. State, 161 Ga. App. 610, 288 S.E.2d 788 (1982); Mansfield v. State, 161 Ga. App. 875, 289 S.E.2d 814 (1982); Williams v. State, 249 Ga. 822, 295 S.E.2d 293 (1982); Stovall v. State, 169 Ga. App. 691, 314 S.E.2d 707 (1984); Kennedy v. State, 172 Ga. App. 336, 323 S.E.2d 169 (1984); Stewart v. State, 254 Ga. 233, 326 S.E.2d 763 (1985); Miller v. State, 174 Ga. App. 703, 331 S.E.2d 616 (1985); Laymac v. State, 181 Ga. App. 737, 353 S.E.2d 559 (1987); Flanders v. State, 188 Ga. App. 98, 371 S.E.2d 918 (1988); Fowler v. State, 188 Ga. App. 873, 374 S.E.2d 805 (1988); Stewart v. State, 261 Ga. 654, 409 S.E.2d 663 (1991); Polley v. State, 203 Ga. App. 825, 418 S.E.2d 107 (1992); Kirkland v. State, 206 Ga. App. 27, 424 S.E.2d 638 (1992); Moore v. State, 220 Ga. App. 434, 469 S.E.2d 211 (1996); Johnson v. State, 223 Ga. App. 294, 477 S.E.2d 439 (1996); Smith v. State, 237 Ga. App. 852, 521 S.E.2d 7 (1999); Bolick v. State, 244 Ga. App. 567, 536 S.E.2d 242 (2000); Sledge v. State, 245 Ga. App. 488, 537 S.E.2d 753 (2000); Atkins v. State, 274 Ga. 103, 549 S.E.2d 356 (2001); Dukes v. State, 285 Ga. App. 172, 645 S.E.2d 664 (2007); Sears v. State, 290 Ga. 1, 717 S.E.2d 453 (2011); Hughes v. State, 323 Ga. App. 4, 746 S.E.2d 648 (2013).

Self-Defense

Statute is inapplicable to a homicide committed in self-defense. Curry v. State, 148 Ga. 559, 97 S.E. 529 (1918).

Self-defense not shown.

- When person, acting in self-defense, intentionally shoots at another, defense of accidental killing is not involved. Dobbs v. State, 132 Ga. App. 368, 208 S.E.2d 178 (1974).

When one claims to be acting in self-defense, defense of accidental killing is not involved. Todd v. State, 149 Ga. App. 574, 254 S.E.2d 894 (1979).

Defendant's testimony that defendant fired a weapon to defend self from codefendant and to scare the codefendant off did not invoke the legal defense of accident. Berry v. State, 267 Ga. 476, 480 S.E.2d 32 (1997).

Lack of intent to kill.

- Voluntary manslaughter conviction upheld after evidence failed to show accident, despite claims that defendant lacked the intent to kill; defendant's act of choking the victim and not letting go, even though defendant had the chance to do so, placed the victim in a reasonable apprehension of bodily harm. Blackford v. State, 251 Ga. App. 324, 554 S.E.2d 290 (2001).

No error in failing to instruct on self-defense.

- Trial court did not err in failing to instruct the jury on the affirmative defense of accident because there was no evidence to support the conclusion that defendant's act of striking the victim was an accident; rather, defendant testified that defendant struck the victim in self-defense. As the jury believed defendant to be guilty of malice murder, it could not have believed the victim's death to be the result of an act committed in the absence of criminal intent. Hannah v. State, 278 Ga. 195, 599 S.E.2d 177 (2004).

Defenses of self-defense and accident inconsistent.

- Defenses of self-defense and justification do not deny the intent to inflict injury, but claim authority for the act under the legal excuse of reasonable fear of immediate serious harm to oneself or another. Since an accident defense involves the lack of intent to do the act at all, the two defenses are inconsistent. Fields v. State, 167 Ga. App. 816, 307 S.E.2d 712 (1983).

Defenses of self-defense and accident are inconsistent. Wilkerson v. State, 183 Ga. App. 26, 357 S.E.2d 814 (1987).

Trial court correctly ruled that defendant's requested charge setting forth the affirmative defense of accident was inconsistent with defendant's claim that defendant stabbed the victim in self-defense. Ray v. State, 191 Ga. App. 881, 383 S.E.2d 364 (1989).

Instructions on accident and justification authorized.

- When there is evidence of both justification and accident, and timely requests for instructions on both topics have been made, the trial court should instruct the jury as to both. Koritta v. State, 263 Ga. 703, 438 S.E.2d 68 (1994).

Instruction on self-defense and accident authorized.

- In a murder case, the trial court did not err in charging the jury on both self-defense and accident because the evidence supported both charges. The defendant testified that the victim was threatening the defendant and that the defendant used a knife to force the victim to get back; the defendant also testified that the defendant did not mean to stab the victim and that the defendant did not understand how the knife became lodged in the victim's chest. Hudson v. State, 284 Ga. 595, 669 S.E.2d 94 (2008).

Culpable Neglect or Unlawful Act

Criminal negligence defined.

- Criminal negligence means not merely such negligence as might be foundation of damage suit, but reckless and wanton negligence and of such character as to show utter disregard for safety of others who might reasonably be expected to be injured thereby. Keye v. State, 136 Ga. App. 707, 222 S.E.2d 172 (1975).

When homicide results from culpable neglect or unlawful act, defense of accident is not involved. Keye v. State, 136 Ga. App. 707, 222 S.E.2d 172 (1975).

Charge on accident not authorized when act was criminally negligent.

- When the defendant's act of shooting close to the victim in order to scare the victim was criminally negligent, a charge on accident was not authorized. Moody v. State, 244 Ga. 247, 260 S.E.2d 11 (1979).

Cocking and aiming a gun, which tends to fire at the slightest touch, at someone's face is an act in utter disregard for the safety of that person and constitutes criminal negligence. Therefore, the defense of accident is inapplicable. New v. State, 260 Ga. 441, 396 S.E.2d 486 (1990); Campbell v. State, 263 Ga. 824, 440 S.E.2d 5 (1994).

When the defendant hit patrol cars while making a U-turn and appeared to be in full control of the vehicle just prior to impact and when there was no evidence authorizing a finding that the collisions occurred absent criminal negligence, the court's refusal to give an instruction on accident was proper. Black v. State, 222 Ga. App. 80, 473 S.E.2d 186 (1996).

Defendant approached the victim's car with a pistol, demanded money, and reached inside and shot the victim when the victim attempted to drive away. Even if the defendant did not intentionally fire the pistol, defendant's acts constituted criminal negligence rendering the defense of accident inapplicable. Griffeth v. State, 224 Ga. App. 462, 480 S.E.2d 889 (1997).

An instruction on the law of accident is not warranted when a knife is used to place someone in reasonable apprehension of bodily injury and the victim is unintentionally injured with the knife, since the intentional use of the knife constituted, at the least, criminal negligence. Davis v. State, 269 Ga. 276, 496 S.E.2d 699 (1998).

After the defendant admitted in open court that the defendant armed with a revolver which was loaded because the defendant thought the defendant's significant other would see the gun and leave, and did not testify to believing to be in imminent danger of death or serious bodily injury, defendant showed utter disregard for the victim's safety as well as criminal negligence which precluded a charge to the jury on accident. Johnson v. State, 236 Ga. App. 61, 510 S.E.2d 918 (1999), overruled on other grounds by Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Defendant was not entitled to a charge on accident because even if the defendant did not intentionally fire a shotgun, which injured the victim, the defendant's admitted acts in threatening the victim and another person and pointing a shotgun at the victim constituted criminal negligence. Arnold v. State, 303 Ga. App. 825, 695 S.E.2d 299 (2010).

Defendant admitted that the defendant pulled back the hammer of the gun and pointed the gun at the victim to scare the victim, but did not intend for the gun to go off; this testimony established criminal negligence, and the defendant was not entitled to an instruction on accident and misfortune under O.C.G.A. § 16-2-2. Browner v. State, 296 Ga. 138, 765 S.E.2d 348 (2014).

Homicide occurring during aggravated assault not accident.

- Evidence that defendant had cocked a gun and pointed it at her husband's head in order to scare him, and that the gun discharged when the victim struck it with his arm, was sufficient to authorize a conviction for felony-murder and the defense of "accident" was inapplicable. Stiles v. State, 264 Ga. App. 446, 448 S.E.2d 172 (1994).

Theory of accident not supported.

- Evidence presented at trial did not support a theory of accident since the defendant pulled the hammer back on the pistol and pointed the pistol at the rape victim in order to get the victim to stop screaming, and in so doing the pistol discharged and the victim died. Brooks v. State, 262 Ga. 187, 415 S.E.2d 903 (1992).

In a prosecution for cruelty to children, where defendant's defense as to some of the injuries was that the child fell off a bunk bed, and where defendant had no knowledge of the origin of other injuries, the trial court did not err in failing to give a charge on the law of accident. Mansfield v. State, 214 Ga. App. 520, 448 S.E.2d 490 (1994).

No reasonable probability existed that the outcome of the defendant's murder trial would have been different even had trial counsel presented an expert's testimony as to the defendant's borderline intellectual functioning and organic brain damage in the guilt/innocence phase of the original trial because the defendant's own testimony acknowledged that the defendant shot the vehicle occupant purposefully, as opposed to accidentally, in attempting to obtain a vehicle to escape, and even if the defendant had been convicted of only malice murder, instead of felony murder, the defendant would have still remained eligible for the death penalty. Humphrey v. Nance, 293 Ga. 189, 744 S.E.2d 706 (2013).

Failure to charge misfortune or accident is not error when crime resulted from unlawful act. Herrington v. State, 31 Ga. App. 167, 120 S.E. 554 (1923).

Homicide occurring by discharge of gun held by accused during attempted robbery.

- When it is shown by the evidence, and admitted in the defendant's statement, that the homicide occurred by the discharge of a gun held by the accused and used in an attempt to rob the deceased, even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involve homicide by accident, or involuntary manslaughter. Accordingly, the court properly declined to give the requested charges on accidental homicide and involuntary manslaughter. Ford v. State, 202 Ga. 599, 44 S.E.2d 263 (1947).

Victim's struggling with armed robber did not entitle robber to accident defense.

- Defendant was not entitled to jury instructions on accident, self-defense, or mutual combat, although the victims struggled with the defendant and the defendant's gun arguably discharged accidentally, given that the defendant was the aggressor with a gun in the middle of an armed robbery. Wainwright v. State, 305 Ga. 63, 823 S.E.2d 749 (2019).

Charge of aggravated assault for deliberately firing gun in direction of person.

- Deliberately firing gun in direction of human being in order to distract that person raises no issue of accident or misfortune when charge is aggravated assault. DeBerry v. State, 241 Ga. 204, 243 S.E.2d 864 (1978).

Swinging knife blade among group of persons as criminal negligence.

- Fact that criminal scheme or undertaking, or intention may not have been directed toward decedent, would not absolve defendant of consequences of act, inasmuch as act of swinging knife blade among a group of persons in close proximity can be found to be criminal negligence or culpable neglect, especially where defendant had opportunity to leave scene and avoid further confrontation, but chose not to do so. Keye v. State, 136 Ga. App. 707, 222 S.E.2d 172 (1975).

In prosecution for manslaughter resulting from battery, evidence of deceased's fall related to causation, not accident.

- When evidence adduced at trial of defendant charged with manslaughter resulting from battery to deceased showed that victim, prior to demise, fell down several steps, and further, that such fall could possibly result in a ruptured spleen and eventually, death, this evidence did not raise issue of accident or misfortune within meaning of statute; rather, it related solely to issue of causation. Newsome v. State, 149 Ga. App. 415, 254 S.E.2d 381 (1979).

Evidence did not raise issue of accident or misfortune.

- See Mills v. State, 187 Ga. App. 79, 369 S.E.2d 283 (1988).

Evidence that defendant drove tractor-trailer truck at a high rate of speed through an area that had signs and indications that slow-moving traffic was nearby was sufficient to show that the victim's death, which resulted from defendant's truck slamming into the back of the vehicle that the victim was in, was caused by culpable neglect or an unlawful act and was not the result of mere misfortune. Wilkes v. State, 254 Ga. App. 447, 562 S.E.2d 519 (2002).

Trial court did not err in refusing an instruction on the affirmative defense of accident because the defendant admitted going to the service station with the intent to rob the victim, admitted pointing a loaded gun at the victim, and acted with criminal negligence, rendering the defense of accident inadmissible. Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (2013).

Failure to charge section not reversible error.

- Charge of accident or misfortune in the case of a defendant who voluntarily consumed alcohol after defendant may have accidentally inhaled alcohol fumes from paint was perhaps authorized since defendant was charged with driving under the influence of alcohol, but failure to give the charge was not reversible error. Taylor v. State, 190 Ga. App. 79, 378 S.E.2d 335, cert. denied, 190 Ga. App. 899, 378 S.E.2d 335 (1989).

Instruction properly refused.

- Trial court properly refused to give a requested jury instruction on the defense of accident or misfortune, where defendant's own testimony showed that defendant was engaged in an attempt to commit an aggravated assault upon the victim when the pistol discharged and the victim was struck by a bullet. Grude v. State, 189 Ga. App. 901, 377 S.E.2d 731 (1989).

During a fight, the victim was burned when the defendant applied a hot iron to her neck and shoulder area, and the defendant denied knowing that the iron was hot, the trial court did not err in refusing to give as a jury instruction the defendant's incomplete statement of the law set forth in O.C.G.A. § 16-2-2. Collier v. State, 195 Ga. App. 380, 393 S.E.2d 509 (1990).

In a prosecution for aggravated assault with a deadly weapon, defendant was not entitled to an instruction on accident where defendant obtained a gun with intent to use it for intimidation, bravado or protection; if defendant used the gun for intimidation or bravado, the shooting was not an accident since defendant had the opportunity to leave the scene; if defendant shot the victim in self-defense, defendant was not entitled to the instruction because the defenses of self-defense and accident are inconsistent. Sumner v. State, 210 Ga. App. 856, 437 S.E.2d 855 (1993).

Because the defendant was charged with trafficking in methamphetamine in violation of O.C.G.A. § 16-13-31(e), the claim that defendant thought that the defendant was delivering marijuana to an informant's girlfriend rather than methamphetamine, based on prior marijuana deliveries made by the defendant for a drug dealer, did not warrant a jury instruction on accident pursuant to O.C.G.A. § 16-2-2; the accident defense was unavailable to the defendant, who still thought that the defendant was committing a criminal act. Dimas v. State, 276 Ga. App. 245, 622 S.E.2d 914 (2005).

Defendant was not entitled to a jury charge on accident since the accident occurred as the defendant was driving recklessly. Dryden v. State, 316 Ga. App. 70, 728 S.E.2d 245 (2012).

Charge not authorized when defendant deliberately fired through window.

- When in a murder trial the defendant testified to deliberately firing through a glass window pane at a large figure, a charge on accident was not authorized. Duke v. State, 256 Ga. 671, 352 S.E.2d 561 (1987).

Charges on accident and criminal negligence proper.

- Trial court did not err in charging the jury on the definition of criminal negligence in addition to including the bracketed "criminal negligence" language in the pattern instruction on accident as the jury was not confused by the charge and was not led to believe that it could substitute criminal negligence for malice; the trial court gave a complete charge on criminal intent and properly charged the jury on murder and malice. Yeager v. State, 281 Ga. 1, 635 S.E.2d 704 (2006).

Jury authorized to convict defendant.

- Evidence supported a defendant's conviction for involuntary manslaughter as there was ample evidence that the state disproved the defendant's accident defense since: (1) the defendant was hurt by the fact that the defendant's significant other had begun a relationship with the victim; (2) the defendant threatened to blow the victim's and the significant other's heads off a few weeks before the shooting; (3) defendant testified that the victim was standing in the defendant's way, that the defendant was searching for a cell phone, and that the defendant pulled out several items, including a gun; (4) a door hit the defendant in the back, causing the gun to discharge into the victim's chest; (5) the defendant testified that the defendant was careless with the gun; and (6) a detective testified that after the detective Mirandized the defendant, the defendant stated that "(the defendant) put a shell in every chamber" and that "(the defendant) fired every shell, every round." Noble v. State, 282 Ga. App. 311, 638 S.E.2d 444 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 4.

ALR.

- Criminal responsibility of druggist for death or injury in consequence of mistake, 55 A.L.R.2d 714.

Homicide predicated on improper treatment of disease or injury, 45 A.L.R.3d 114.

Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.

16-2-3. Presumption of sound mind and discretion.

Every person is presumed to be of sound mind and discretion but the presumption may be rebutted.

(Code 1933, § 26-606, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For article discussing the theory of insanity in criminal law, see 15 Mercer L. Rev. 399 (1964).

JUDICIAL DECISIONS

Mental abnormality, unless it amounts to insanity, is not a defense to a crime. Hudson v. State, 171 Ga. App. 181, 319 S.E.2d 28 (1984).

Absent prior adjudication of insanity, presumption existing at time of trial is of sanity. Howard v. State, 150 Ga. App. 356, 258 S.E.2d 39 (1979).

Presumption of sanity returns upon discharge.

- Presumption of sanity prevails after release of accused previously committed to mental institution. Jackson v. State, 149 Ga. App. 253, 253 S.E.2d 874 (1979).

Although person may have been previously committed, presumption of sanity returns when person is discharged from institutional confinement. Fulghum v. State, 246 Ga. 184, 269 S.E.2d 455 (1980).

Even when an accused has initially been found incompetent to stand trial, upon the accused being administratively released for trial, the rebuttable presumption of sanity applies. Johncox v. State, 189 Ga. App. 188, 375 S.E.2d 139 (1988).

Defendant has burden once criminal intent has been shown, of illustrating defendant's insanity before state is required to rebut that showing beyond a reasonable doubt. Moses v. State, 245 Ga. 180, 263 S.E.2d 916, cert. denied, 449 U.S. 849, 101 S. Ct. 138, 66 L. Ed. 2d 60 (1980), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993).

Evidence was sufficient to conclude that the defendant failed to prove that the defendant was incompetent to stand trial because the state's expert witness found that, based on the defendant's exchanges during a police interview, the felony murder concept was explained to the defendant numerous times and the defendant's responses indicated that the defendant understood; the fact that the defendant did not think that the defendant should be held responsible for the victim's death, did not mean that the defendant should not be held responsible or that it rendered the defendant incapable of understanding the situation; and there was no medical support for the conclusion that the defendant was not competent to stand trial in 2008. Tye v. State, 298 Ga. 474, 782 S.E.2d 10 (2016).

No evidence of incompetency.

- Children's challenges to changes in life insurance beneficiaries made by their parent just before the parent's death on mental competency grounds failed, as the children did not present sufficient evidence to create a question of fact as to the decedent's mental competency at the time the parent executed the change of beneficiary forms; the children pointed the court to no evidence that they were present at the time the changes were made nor that they specifically observed the decedent's in an altered or confused state at or near the time the forms were executed. State Farm Life Ins. Co. v. Carlyle, F. Supp. 2d (N.D. Ga. Sept. 12, 2006).

Burden is on defendant to prove insanity by preponderance of evidence.

- To overcome presumption of sanity, a defendant must show by a preponderance of the evidence that defendant was not criminally responsible at the time of commission of act. Longshore v. State, 242 Ga. 689, 251 S.E.2d 280 (1978).

When defendant in criminal case files general plea of insanity, i.e., argues that one is not guilty of crime by reason of being insane at time of the crime's commission, burden is on defendant to establish by a preponderance of the evidence that the defendant was insane. Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980).

Insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence. Strozier v. State, 254 Ga. 712, 334 S.E.2d 181 (1985); Harris v. State, 256 Ga. 350, 349 S.E.2d 374 (1986).

Pretrial notice requirement has no effect on burden of proof.

- Procedural requirement of pretrial notice to the state of a defense which would generally require expert opinion to rebut has no effect on the burden of proof. The state must still prove criminal intent, but the notice does not add a new burden, that the state must prove sanity without the aid of the "presumption" of sanity in the state's case-in-chief. The state is merely entitled to prior notice that the state will have to present evidence in rebuttal to overcome the defendant's evidence of insanity. Johncox v. State, 189 Ga. App. 188, 375 S.E.2d 139 (1988).

Presentation of evidence of insanity does not automatically dissipate presumption of sanity which exists by law. Jackson v. State, 149 Ga. App. 253, 253 S.E.2d 874 (1979); Moses v. State, 245 Ga. 180, 263 S.E.2d 916, cert. denied, 449 U.S. 849, 101 S. Ct. 138, 66 L. Ed. 2d 60 (1980), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993); Fulghum v. State, 246 Ga. 184, 269 S.E.2d 455 (1980); Dennis v. State, 170 Ga. App. 630, 317 S.E.2d 874 (1984); Loumakis v. State, 179 Ga. App. 294, 346 S.E.2d 373 (1986).

Jurors are not bound by the opinions of expert witnesses regarding a defendant's sanity; instead, they may rely on the presumption of sanity in O.C.G.A. § 16-2-3 unless the proof of insanity is overwhelming. Vanderpool v. State, 244 Ga. App. 804, 536 S.E.2d 821 (2000), cert denied, 532 U.S. 996, 121 S. Ct. 1658, 149 L. Ed. 2d 640 (2001).

Overwhelming proof of insanity.

- When the proof of insanity is overwhelming, juries may no longer rely solely on the presumption of sanity. Stevens v. State, 256 Ga. 440, 350 S.E.2d 21 (1986).

When proof of insanity is overwhelming, juries may not rely solely on the rebuttable presumption of sanity. It is a jury's function to determine the credibility of witnesses and the probative value of testimony, to weigh the evidence and not arbitrarily ignore it. Proof of insanity may be so clear and so overwhelming that a finding of sanity cannot be upheld. Wilson v. State, 257 Ga. 444, 359 S.E.2d 891 (1987).

Evidence of insanity not overwhelming.

- Court was authorized to rely on the presumption of sanity in O.C.G.A. § 16-2-3 because the evidence of insanity was not overwhelming. Stanley v. State, 242 Ga. App. 597, 530 S.E.2d 506 (2000).

Jury can view surrounding facts and circumstances in making determination regarding appellant's sanity and in determining whether defendant could in fact distinguish right from wrong. Moses v. State, 245 Ga. 180, 263 S.E.2d 916, cert. denied, 449 U.S. 849, 101 S. Ct. 138, 66 L. Ed. 2d 60 (1980), overruled on other grounds, Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993).

Rebutting presumption imposed by statute in civil matters.

- Plaintiffs' stated cognizable claims against a bishop arising out of a breach of fiduciary duty as evidence was presented that the bishop abused the bishop's position of spiritual authority to coerce or seduce the married plaintiff female into consenting to a prolonged sexual relationship with the bishop. Plaintiffs also put forward evidence of the bishop's charismatic nature and the bishop's ability to control and coerce using the bishop's spiritual authority, all of which is evidence in rebuttal of the presumptions of "sound mind and discretion" relied upon by the trial court. Brewer v. Paulk, 296 Ga. App. 26, 673 S.E.2d 545 (2009).

Sanity of defendant is presumed.

- Defendant's proffered testimony that defendant had a blackout during defendant's act of DUI was properly rejected. Crossley v. State, 261 Ga. App. 250, 582 S.E.2d 204 (2003).

Instruction concerning presumption not unconstitutional.

- Trial court's charge to the jury that every person is presumed to be of sound mind and discretion, but that this presumption may be rebutted, was not unconstitutionally burden-shifting. Thompson v. State, 178 Ga. App. 723, 344 S.E.2d 696 (1986).

Absent request, failure to charge burden of proof regarding sanity is not error.

- When charge of court includes instruction as to insanity but places burden of proof as to each essential element of crime, including intent, upon state beyond a reasonable doubt, it is not error for court not to instruct jury specifically, absent request, as to any burden of proof regarding sanity. Howard v. State, 150 Ga. App. 356, 258 S.E.2d 39 (1979).

Charge on intent in murder trial did not unconstitutionally shift the burden of proof. Parker v. State, 256 Ga. 363, 349 S.E.2d 379 (1986).

Instruction reciting pattern charge upheld on appeal.

- Because the trial court's charge on presumption that "every person is presumed to be of sound mind and discretion, but the presumption may be rebutted" recited the pattern charge on presumption word for word, it was upheld on appeal. May v. State, 287 Ga. App. 407, 651 S.E.2d 510 (2007).

"Guilty but mentally ill" and "not guilty by reason of insanity" distinguished.

- In a trial for murder of defendant's parents it was held that, construing the evidence in a light most favorable to the guilty verdict, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that defendant was insane at the time of the crime. This led to the conclusion that, also construing the evidence in a light most favorable to the verdict, a rational trier of fact could have found defendant guilty but mentally ill beyond a reasonable doubt. Harris v. State, 256 Ga. 350, 349 S.E.2d 374 (1986).

Guilty, but mentally ill and not insane.

- Evidence of defendant's calm behavior after the crime, of the fact that defendant displayed no psychotic behavior, was not under medication during hospitalization after the crime, and that defendant denied hearing voices or having any special connection to God, supported the jury's decision that defendant was guilty but mentally ill, rather than insane at the time of the offense. Barge v. State, 256 Ga. App. 560, 568 S.E.2d 841 (2002).

Evidence sufficient to support jury's finding defendant sane at time of crime.

- See Murray v. State, 253 Ga. 90, 317 S.E.2d 193 (1984).

Defendant failed to prove by a preponderance of the evidence that defendant was insane at the time of the crimes as the evidence showed that defendant wore a hat and gloves to the scene; defendant had change ready for the victim's use at pay telephones; defendant was aware of the time the victim arrived at work; and defendant even devised a plan to make the victim forget about the events that transpired; therefore, a rational trier of fact was authorized to rely on the presumption of defendant's sanity. Guillen v. State, 258 Ga. App. 465, 574 S.E.2d 598 (2002).

Evidence insufficient for involuntary intoxication.

- Although the police officers who arrested a defendant provided some evidence that corroborated the defendant's affirmative defense of involuntary intoxication, testimony from the victim of a false imprisonment and aggravated assault that the victim had not injected the defendant with any drugs on the night of the assault was sufficient to support the jury's finding that the defendant was of sound mind and discretion when the defendant held the victim captive. Stewart v. State, 291 Ga. App. 846, 663 S.E.2d 278 (2008).

Directed verdict in competency trial.

- Trial court did not err in denying the defendant's motion for a directed verdict under O.C.G.A. § 9-11-50 in the defendant's competency trial because the evidence on competency was in conflict; even though the defendant's expert witness opined that the defendant was not competent to stand trial, the state's expert testified that the defendant was competent to do so. Smith v. State, 312 Ga. App. 174, 718 S.E.2d 43 (2011).

Competency established.

- While the defendant presented expert testimony, based on the defendant's performance on various cognitive tests, that the defendant was not competent to stand trial, the finding of competency to stand trial was supported by the testimony of the state's expert, who opined that the defendant understood the nature and object of the proceedings, had a basic comprehension of the defendant's own condition in reference to the proceedings, and had the ability to assist counsel in a defense. Tiegreen v. State, 314 Ga. App. 860, 726 S.E.2d 468 (2012).

Cited in Gilbert v. State, 235 Ga. 501, 220 S.E.2d 262 (1975); Thomas v. State, 136 Ga. App. 165, 220 S.E.2d 736 (1975); Durham v. State, 239 Ga. 697, 238 S.E.2d 334 (1977); Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978); C.H. v. State, 148 Ga. App. 609, 252 S.E.2d 22 (1979); Bowers v. State, 153 Ga. App. 894, 267 S.E.2d 309 (1980); Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980); Slaughter v. State, 162 Ga. App. 136, 290 S.E.2d 338 (1982); Rauschenberg v. State, 161 Ga. App. 331, 291 S.E.2d 58 (1982); Brown v. State, 250 Ga. 66, 295 S.E.2d 727 (1982); Peek v. State, 250 Ga. 50, 295 S.E.2d 834 (1982); Dollar v. State, 168 Ga. App. 726, 310 S.E.2d 236 (1983); Davenport v. State, 170 Ga. App. 667, 317 S.E.2d 895 (1984); Adams v. State, 254 Ga. 481, 330 S.E.2d 869 (1985); Davis v. State, 178 Ga. App. 357, 343 S.E.2d 140 (1986); Nelson v. State Farm Life Ins. Co., 178 Ga. App. 670, 344 S.E.2d 492 (1986); Jackson v. State, 180 Ga. App. 774, 350 S.E.2d 484 (1986); Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 63, 98, 110.

Defendant's Competency to Stand Trial, 40 POF2d 171.

C.J.S.

- 23 C.J.S., Criminal Procedure and Rights of the Accused, §§ 984, 985.

ALR.

- Presumption of continuing insanity as applied to accused in criminal case, 27 A.L.R.2d 121.

Counsel's right, in consulting with accused as client, to be accompanied by psychiatrist, psychologist, hypnotist, or similar practitioner, 72 A.L.R.2d 1120.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.

Posttraumatic stress disorder (PTSD) as defense to murder, assault, or other violent crime, 4 A.L.R.7th 5.

16-2-4. Presumption that acts of sound person willful.

The acts of a person of sound mind and discretion are presumed to be the product of the person's will but the presumption may be rebutted.

(Code 1933, § 26-603, enacted by Ga. L. 1968, p. 1249, § 1.)

JUDICIAL DECISIONS

Jury instruction quoting section held unconstitutional.

- Because a jury instruction which quoted O.C.G.A. § 16-2-4 in its entirety could have been understood by a reasonable juror as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent, and because the charge as a whole did not explain or cure the error, the jury charge violated the Due Process Clause requirement that the state prove every element of a criminal offense beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).

It is not necessary that charge to jury be in exact language of Code. Parks v. State, 234 Ga. 579, 216 S.E.2d 804 (1975).

Cited in Spencer v. State, 231 Ga. 705, 203 S.E.2d 856 (1974); Bentley v. State, 131 Ga. App. 425, 205 S.E.2d 904 (1974); Nunnally v. State, 235 Ga. 693, 221 S.E.2d 547 (1975); Bradley v. State, 137 Ga. App. 670, 224 S.E.2d 778 (1976); Gatlin v. State, 236 Ga. 707, 225 S.E.2d 224 (1976); Scott v. State, 239 Ga. 46, 235 S.E.2d 522 (1977); Lunsford v. State, 145 Ga. App. 446, 243 S.E.2d 655 (1978); Harris v. State, 145 Ga. App. 675, 244 S.E.2d 620 (1978); Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980); Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980); Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344, 268 S.E.2d 397 (1980); Jackson v. State, 157 Ga. App. 580, 278 S.E.2d 152 (1981); Slaughter v. State, 162 Ga. App. 136, 290 S.E.2d 338 (1982); Whitsell v. State, 179 Ga. App. 358, 346 S.E.2d 130 (1986).

RESEARCH REFERENCES

ALR.

- Flight as evidence of guilt, 25 A.L.R. 886.

Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.

Challenges to pre- and post-conviction forfeitures and to post-conviction restitution under animal cruelty statutes, 70 A.L.R.6th 329.

16-2-5. Presumption that sound person intends natural and probable consequences of acts.

A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.

(Code 1933, § 26-604, enacted by Ga. L. 1968, p. 1249, § 1.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided under former Code 1933, § 26-202, as it read prior to revision of the title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section.

Intent manifested by circumstances connected with perpetration of offense.

- Every crime consists in union or joint operation of act and intention. Sometimes intention can be proved, sometimes it can only be inferred or presumed; and general rule is that intention will be manifested by circumstances connected with perpetration of offense. Marzetta v. Steinman, 117 Ga. App. 471, 160 S.E.2d 590 (1968) (decided under former Code 1933, § 26-202).

Jury instruction quoting section held unconstitutional.

- Because a jury instruction which quoted O.C.G.A. § 16-2-5 in its entirety could have been understood by a reasonable juror as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent, and because the charge as a whole did not explain or cure the error, the jury charge violates the Due Process Clause's requirement that the state prove every element of a criminal offense beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).

Inaccuracies in charge which do not mislead or obscure meaning do not require new trial. Williams v. State, 159 Ga. App. 865, 285 S.E.2d 597 (1981).

It is not necessary that charge to jury be in exact language of Code. Parks v. State, 234 Ga. 579, 216 S.E.2d 804 (1975).

Charge in accordance with statute does not impermissibly shift burden of persuasion. Huffman v. State, 153 Ga. App. 203, 265 S.E.2d 603 (1980).

Charge in language of statute is not burden shifting. Simpson v. State, 159 Ga. App. 235, 283 S.E.2d 91 (1981).

No conclusive presumption of intent is charged when the jury is also adequately instructed that the presumption may be rebutted. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983).

Failure to charge in homicide case that presumption is rebuttable.

- In charging the jury in a homicide case under statute, it is reversible error not to tell jury that presumption created may be rebutted. Lane v. State, 153 Ga. App. 101, 264 S.E.2d 569 (1980).

Failure to include statutory language that presumption may be rebutted is not error. Wilson v. State, 233 Ga. 479, 211 S.E.2d 757 (1975). But see Lane v. State, 153 Ga. App. 101, 264 S.E.2d 569 (1980).

Combining former Code 1933,

§§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and16-2-6) in charge creates permissive presumption. - Permissive presumption such as created by combining former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and16-2-6) in charge allowed, put did not require, trier of fact to infer elemental fact from proof by prosecutor of basic one and that placed no burden of any kind on the defendant. Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979).

Permissive presumptions were not inherently unconstitutional, but were to be tested by the rational connection test under which the court asks if ultimate fact to be presumed was more likely than not to flow from the proved fact; and when former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and16-2-6) were combined in charge to create such presumption, the presumption was rational, as obviously it was more likely than not that a normal defendant intended the natural and probable consequences of acts. Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979).

Instruction that recent possession of stolen property may establish criminal intent.

- In prosecution for receiving stolen property, judge's instruction to jury "that recent possession of stolen property without satisfactory explanation is sufficient to establish criminal intent" was error, despite proper instruction on burden of proving criminal intent, and required reversal. Williams v. State, 159 Ga. App. 865, 285 S.E.2d 597 (1981).

Finding of specific intent to cause harm may not be based on the rebuttable presumption that a person of sound mind and discretion is presumed to intend the natural and probable consequences of acts. Wal-Mart Stores, Inc. v. Johnson, 249 Ga. App. 84, 547 S.E.2d 320 (2001), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).

Rebutting presumption imposed by statute in civil matters.

- Plaintiffs' stated cognizable claims against a bishop arising out of a breach of fiduciary duty as evidence was presented that the bishop abused the bishop's position of spiritual authority to coerce or seduce the married plaintiff female into consenting to a prolonged sexual relationship with the bishop. Plaintiffs also put forward evidence of the bishop's charismatic nature and the bishop's ability to control and coerce using the bishop's spiritual authority, all of which is evidence in rebuttal of the presumptions of "sound mind and discretion" relied upon by the trial court. Brewer v. Paulk, 296 Ga. App. 26, 673 S.E.2d 545 (2009).

Cited in Bloodworth v. State, 128 Ga. App. 657, 197 S.E.2d 423 (1973); West v. State, 129 Ga. App. 271, 199 S.E.2d 354 (1973); Kramer v. State, 230 Ga. 855, 199 S.E.2d 805 (1973); Spencer v. State, 231 Ga. 705, 203 S.E.2d 856 (1974); Bentley v. State, 131 Ga. App. 425, 205 S.E.2d 904 (1974); Ford v. State, 232 Ga. 511, 207 S.E.2d 494 (1974); Nunnally v. State, 235 Ga. 693, 221 S.E.2d 547 (1975); Smith v. State, 137 Ga. App. 576, 224 S.E.2d 534 (1976); Bradley v. State, 137 Ga. App. 670, 224 S.E.2d 778 (1976); Gatlin v. State, 236 Ga. 707, 225 S.E.2d 224 (1976); Williamson v. State, 138 Ga. App. 306, 226 S.E.2d 102 (1976); Scott v. State, 239 Ga. 46, 235 S.E.2d 522 (1977); Washington v. State, 142 Ga. App. 651, 236 S.E.2d 837 (1977); Lunsford v. State, 145 Ga. App. 446, 243 S.E.2d 655 (1978); Harris v. State, 145 Ga. App. 675, 244 S.E.2d 620 (1978); Borgh v. State, 146 Ga. App. 649, 247 S.E.2d 137 (1978); Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980); Russell v. State, 152 Ga. App. 693, 263 S.E.2d 689 (1979); Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980); Peacock v. State, 154 Ga. App. 201, 267 S.E.2d 807 (1980); Thrift-Mart, Inc. v. Commercial Union Assurance Cos., 154 Ga. App. 344, 268 S.E.2d 397 (1980); Jackson v. State, 157 Ga. App. 580, 278 S.E.2d 152 (1981); Whitsell v. State, 179 Ga. App. 358, 346 S.E.2d 130 (1986); Adams v. State, 293 Ga. App. 377, 667 S.E.2d 186 (2008).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, § 281.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, § 39.

ALR.

- Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.

16-2-6. Intention a question of fact.

A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Laws 1833, Cobb's 1851 Digest, p. 779; Code 1863, § 4189; Code 1868, § 4228; Code 1873, § 4298; Code 1882, § 4293; Penal Code 1895, § 32; Penal Code 1910, § 32; Code 1933, § 26-202; Code 1933, § 26-605, enacted by Ga. L. 1968, p. 1249, § 1.)

JUDICIAL DECISIONS

General Consideration

Willful failure to discover truth on notice does not negate intent. Rivers v. State, 118 Ga. 42, 44 S.E. 859 (1903).

When otherwise relevant, state of mind can be proved as an independent fact. Royce & Co. v. Gazan, 76 Ga. 79 (1885); Baxley v. Baxley, 117 Ga. 60, 43 S.E. 436 (1903); Alexander v. State, 118 Ga. 26, 44 S.E. 851 (1903).

Intention with which an act is done is peculiarly a question of fact for determination by the jury, and although a finding that the accused had the intent to commit the crime charged may be supported by evidence that is weak and unsatisfactory, the verdict will not be set aside on that ground. Mallette v. State, 119 Ga. App. 24, 165 S.E.2d 870 (1969).

Intent manifested by circumstances connected with perpetration of offense.

- Every crime consists in union or joint operation of act and intention. Sometimes intention can be proved, sometimes it can only be inferred or presumed; and general rule is that intention will be manifested by circumstances connected with perpetration of offense. Marzetta v. Steinman, 117 Ga. App. 471, 160 S.E.2d 590 (1968); Mallette v. State, 119 Ga. App. 24, 165 S.E.2d 870 (1969).

State proved that defendant, while intoxicated, purposely drove repeatedly over the road's center line and defendant's proffered defense that defendant "blacked out" was properly rejected. Crossley v. State, 261 Ga. App. 250, 582 S.E.2d 204 (2003).

Defendant's ignorance of violating the law would not relieve defendant of criminal intent if defendant intended to do the act which the legislature prohibited. Wilson v. State, 57 Ga. App. 839, 197 S.E. 48 (1938).

Knowledge, like intent, is a question of fact which is seldom capable of proof by direct evidence. Johnson v. State, 158 Ga. App. 183, 279 S.E.2d 483 (1981).

Whether requisite intent is manifested by circumstances is question for trier of fact, and, on review, appellate court will not disturb factual determination unless it is contrary to evidence and clearly erroneous. Riddle v. State, 145 Ga. App. 328, 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237, 282 S.E.2d 305 (1981); Burden v. State, 187 Ga. App. 778, 371 S.E.2d 410, cert. denied, 187 Ga. App. 778, 371 S.E.2d 410 (1988).

Intent with which act is done is a question of fact for determination by jury. Mallette v. State, 119 Ga. App. 24, 165 S.E.2d 870 (1969); M.J.W. v. State, 133 Ga. App. 350, 210 S.E.2d 842 (1974).

One is presumed to intend necessary and legitimate consequences of that which one knowingly does. M.J.W. v. State, 133 Ga. App. 350, 210 S.E.2d 842 (1974).

Presence, companionship and conduct before and after offense as relevant to intent.

- While mere presence at scene of commission of crime is not sufficient evidence to convict one of being party thereto, presence, companionship, and conduct before and after offense are circumstances from which one's participation in criminal intent may be inferred. Kimbro v. State, 152 Ga. App. 893, 264 S.E.2d 327 (1980); Parham v. State, 166 Ga. App. 855, 305 S.E.2d 599 (1983); Norris v. State, 220 Ga. App. 87, 469 S.E.2d 214 (1996).

There was sufficient evidence of defendant's intent to participate in the robbery of a delivery man where the evidence showed that defendant was privy to the robbery plan, participated in the robbery, and convened with the codefendants after the robbery. In the Interest of C.L.B., 267 Ga. App. 456, 600 S.E.2d 407 (2004).

Inferences and deductions which flow naturally from facts proved may be considered in determining intent. Fears v. State, 152 Ga. App. 817, 264 S.E.2d 284 (1979).

Motive.

- Motive is only one of several things that may be considered in finding intent. Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (1977).

Evidence of knowledge.

- Evidence was sufficient to support the jury's verdict that a defendant knowingly possessed the methamphetamine concealed in the defendant's vehicle because the evidence established that the methamphetamine was located in an unmarked pill bottle within arm's reach on an open shelf behind the passenger's seat, in the console of the vehicle along with the defendant's personal possessions, and in the bedding area of the vehicle behind a panel having a missing screw, and there were no other passengers in the vehicle. Davis v. State, 287 Ga. App. 478, 651 S.E.2d 750 (2007), cert. denied, No. S08C0176, 2008 Ga. LEXIS 179 (Ga. 2008).

Evidence of criminal intent.

- Defendant's conduct and demeanor evinced criminal intent authorizing the jury's verdict finding the defendant guilty of malice murder in connection with the shooting death of a police officer because the defendant and the defendant's friends were overheard discussing beating up the officer; when the officer attempted to arrest one of the friends with the defendant, the defendant drew the defendant's pistol and fired five shots into the officer's back; and the jury received expert testimony that the defendant did not have Post-Traumatic Stress Disorder at the time of the incident. Bowman v. State, 306 Ga. 97, 829 S.E.2d 139 (2019).

Permissive presumption was created by combining former Code 1933,

§§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and16-2-6) in charge. - Permissive presumption such as created by combining former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and16-2-6) in charge allowed, but did not require, trier of fact to infer elemental fact from proof by prosecutor of basic one and that places no burden of any kind on the defendant. Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979).

Permissive presumptions are not inherently unconstitutional, but are to be tested by the rational connection test under which the court asks if ultimate fact to be presumed is more likely than not to flow from proved fact; and where former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and16-2-6) are combined in charge to create such presumption, the presumption is rational as obviously it is more likely than not that a normal defendant intends the natural and probable consequences of defendant's acts. Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979).

Statute need not be charged, absent request, where essential elements of crime are charged.

- Trial court is not required to charge intention as defined by statute in absence of a timely written request if the court has charged essential elements of crime with which defendant is charged, including necessity of intent to commit crime. Whigham v. State, 131 Ga. App. 261, 205 S.E.2d 467 (1974); Carter v. State, 137 Ga. App. 824, 225 S.E.2d 73 (1976).

It is not necessary that charge to jury be in exact language of Code. Parks v. State, 234 Ga. 579, 216 S.E.2d 804 (1975).

Failure to charge exact language of former Code 1933, §§ 26-604 and 26-605 (see now O.C.G.A. §§ 16-2-5 and16-2-6) was not reversible error absent request therefor when subject of intent was fully charged. Smith v. State, 139 Ga. App. 660, 229 S.E.2d 74 (1976).

Detailed definition of intent not necessary.

- Upright and intelligent jurors would have no difficulty in understanding meaning of a simple word like "intent," and no detailed definition need be given. Powell v. State, 130 Ga. App. 588, 203 S.E.2d 893 (1974).

Charge that law presumes unlawful action is criminally intended until contrary shown is error, as it is contrary to the express language of the statute. Williams v. State, 126 Ga. App. 454, 191 S.E.2d 100 (1972).

Charging substance of section not burdenshifting.

- Trial court's charge to the jury stating the substance of O.C.G.A. § 16-2-6 was not improper or burdenshifting in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). Quick v. State, 198 Ga. App. 353, 401 S.E.2d 758 (1991).

Sufficiency of evidence.

- Jury's finding with respect to intent is not set aside because evidence supporting it is exceedingly weak. Mallette v. State, 119 Ga. App. 24, 165 S.E.2d 870 (1969).

Evidence supported a conviction for child molestation where: (1) the victim testified that the defendant touched the victim's genitals from the outside of the victim's clothing while the victim sat in front of the defendant on a four-wheeler; (2) another witness testified that the defendant touched the witness the same day; and (3), the jury did not believe the defendant's explanation that if the touching occurred, it was accidental. Collins v. State, 276 Ga. App. 358, 623 S.E.2d 192 (2005).

When a deputy testified that the defendant resisted the deputy's efforts to break up a prison fight, then turned on the deputy, punched the deputy, and swung at the deputy repeatedly, injuring the deputy, there was sufficient evidence of mutiny in a penal institution and felony obstruction of an officer; the trial court was authorized under O.C.G.A. § 16-2-6 to infer from the circumstances that the defendant both knowingly and willfully obstructed the deputy by the use of violence and intended to cause the deputy serious bodily injury by striking the deputy with a fist, and under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), it could rely solely on the deputy's account of the events. Butler v. State, 284 Ga. App. 802, 644 S.E.2d 898 (2007).

Trial court did not err in finding that the defendant was a party to the crime because there was ample evidence, based upon the defendant's actions and the defendant's presence, companionship, conduct, and demeanor before, during, and after the commission of the crime, to conclude that the defendant was more than "merely present" during the commission of the crimes; while in a car with the victim and companions, the front-seat passenger pulled out a gun and shot the victim, and during the incident, the defendant did not say or do anything to intervene. Cook v. State, 314 Ga. App. 289, 723 S.E.2d 709 (2012).

Cited in Rowland v. State, 124 Ga. App. 495, 184 S.E.2d 495 (1971); Shields v. State, 126 Ga. App. 544, 191 S.E.2d 448 (1972); Taylor v. State, 127 Ga. App. 692, 194 S.E.2d 627 (1972); Daniels v. State, 230 Ga. 126, 195 S.E.2d 900 (1973); Bloodworth v. State, 128 Ga. App. 657, 197 S.E.2d 423 (1973); Phillips v. State, 230 Ga. 444, 197 S.E.2d 720 (1973); Pittman v. State, 230 Ga. 448, 197 S.E.2d 722 (1973); Bloodworth v. State, 129 Ga. App. 40, 198 S.E.2d 341 (1973); Murphy v. State, 129 Ga. App. 28, 198 S.E.2d 344 (1973); West v. State, 129 Ga. App. 271, 199 S.E.2d 354 (1973); Kramer v. State, 230 Ga. 855, 199 S.E.2d 805 (1973); James v. State, 232 Ga. 834, 209 S.E.2d 176 (1974); Bentley v. State, 131 Ga. App. 425, 205 S.E.2d 904 (1974); Wilson v. State, 233 Ga. 479, 211 S.E.2d 757 (1975); Franklin v. State, 136 Ga. App. 47, 220 S.E.2d 60 (1975); J.A.T. v. State, 136 Ga. App. 540, 221 S.E.2d 702 (1975); Littleton v. State, 139 Ga. App. 511, 229 S.E.2d 20 (1976); Ealey v. State, 139 Ga. App. 604, 229 S.E.2d 86 (1976); Dodson v. State, 237 Ga. 607, 229 S.E.2d 364 (1976); Bass v. State, 237 Ga. 710, 229 S.E.2d 448 (1976); Coleman v. State, 137 Ga. App. 689, 224 S.E.2d 878 (1976); Dodd v. State, 236 Ga. 572, 224 S.E.2d 408 (1976); Wiggins v. State, 139 Ga. App. 98, 227 S.E.2d 895 (1976); Robertson v. State, 140 Ga. App. 506, 231 S.E.2d 367 (1976); Harrison v. State, 140 Ga. App. 296, 231 S.E.2d 809 (1976); Jones v. State, 141 Ga. App. 17, 232 S.E.2d 365 (1977); Washington v. State, 142 Ga. App. 651, 236 S.E.2d 837 (1977); Baker v. State, 143 Ga. App. 302, 238 S.E.2d 241 (1977); Wells v. State, 144 Ga. App. 841, 242 S.E.2d 752 (1978); Jones v. State, 145 Ga. App. 356, 243 S.E.2d 747 (1978); Harris v. State, 145 Ga. App. 675, 244 S.E.2d 620 (1978); Dougherty v. State, 145 Ga. App. 718, 244 S.E.2d 638 (1978); Sheffield v. State, 241 Ga. 245, 244 S.E.2d 869 (1978); Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978); Hitchcock v. State, 146 Ga. App. 470, 246 S.E.2d 477 (1978); McCane v. State, 147 Ga. App. 730, 250 S.E.2d 181 (1978); Clary v. State, 151 Ga. App. 301, 259 S.E.2d 697 (1979); Jackson v. State, 151 Ga. App. 296, 260 S.E.2d 565 (1979); J.E.T. v. State, 151 Ga. App. 836, 261 S.E.2d 752 (1979); Johnson v. State, 152 Ga. App. 6, 262 S.E.2d 214 (1979); Whisenhunt v. State, 152 Ga. App. 829, 264 S.E.2d 271 (1979); Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980); Bissell v. State, 153 Ga. App. 564, 266 S.E.2d 238 (1980); Green v. State, 155 Ga. App. 795, 272 S.E.2d 761 (1980); O'Bear v. State, 156 Ga. App. 100, 274 S.E.2d 54 (1980); Brewer v. State, 156 Ga. App. 468, 274 S.E.2d 817 (1980); Craft v. State, 158 Ga. App. 745, 282 S.E.2d 203 (1981); Simpson v. State, 159 Ga. App. 235, 283 S.E.2d 91 (1981); Ely v. State, 159 Ga. App. 693, 285 S.E.2d 66 (1981); Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981); Butler v. State, 161 Ga. App. 251, 288 S.E.2d 306 (1982); Billings v. State, 161 Ga. App. 500, 288 S.E.2d 622 (1982); Monteford v. State, 162 Ga. App. 491, 292 S.E.2d 93 (1982); McCormick v. State, 162 Ga. App. 267, 293 S.E.2d 35 (1982); Hall v. State, 162 Ga. App. 713, 293 S.E.2d 862 (1982), overruled in part by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019); Gray v. State, 163 Ga. App. 720, 294 S.E.2d 697 (1982); Coker v. State, 163 Ga. App. 799, 295 S.E.2d 538 (1982); Talley v. State, 164 Ga. App. 150, 296 S.E.2d 173 (1982); Blalock v. State, 165 Ga. App. 257, 299 S.E.2d 919 (1983); Wilson v. Jones, 251 Ga. 23, 302 S.E.2d 546 (1983); McGahee v. State, 170 Ga. App. 227, 316 S.E.2d 832 (1984); Brown v. State, 173 Ga. App. 264, 326 S.E.2d 2 (1985); Smith v. State, 174 Ga. App. 744, 331 S.E.2d 91 (1985); Browning v. State, 174 Ga. App. 759, 331 S.E.2d 625 (1985); Lunz v. State, 174 Ga. App. 893, 332 S.E.2d 37 (1985); Colsson v. State, 177 Ga. App. 840, 341 S.E.2d 318 (1986); Daniel v. State, 179 Ga. App. 54, 345 S.E.2d 143 (1986); In re R.K.J., 179 Ga. App. 112, 345 S.E.2d 658 (1986); Worth v. State, 179 Ga. App. 207, 346 S.E.2d 82 (1986); Tucker v. State, 182 Ga. App. 625, 356 S.E.2d 559 (1987); Caldwell v. State, 183 Ga. App. 110, 357 S.E.2d 845 (1987); Carruth v. State, 183 Ga. App. 203, 358 S.E.2d 610 (1987); In re J.B., 183 Ga. App. 229, 358 S.E.2d 620 (1987); Smith v. State, 188 Ga. App. 415, 373 S.E.2d 97 (1988); Fowler v. State, 188 Ga. App. 873, 374 S.E.2d 805 (1988); Villa v. State, 190 Ga. App. 530, 379 S.E.2d 417 (1989); Cline v. State, 199 Ga. App. 532, 405 S.E.2d 524 (1991); Loden v. State, 199 Ga. App. 683, 406 S.E.2d 103 (1991); Cole v. State, 200 Ga. App. 318, 408 S.E.2d 438 (1991); Griggs v. State, 208 Ga. App. 768, 432 S.E.2d 591 (1993); Andrew v. State, 216 Ga. App. 427, 454 S.E.2d 542 (1995); Massalene v. State, 224 Ga. App. 321, 480 S.E.2d 616 (1997); Wells v. State, 226 Ga. App. 172, 486 S.E.2d 390 (1997); Adams v. State, 239 Ga. App. 42, 520 S.E.2d 746 (1999); In the Interest of N.T.S., 242 Ga. App. 109, 528 S.E.2d 876 (2000); Brown v. State, 242 Ga. App. 858, 531 S.E.2d 409 (2000); In the Interest of G.J., 251 Ga. App. 299, 554 S.E.2d 269 (2001); Maynor v. State, 257 Ga. App. 151, 570 S.E.2d 428 (2002); Spickler v. State, 276 Ga. 164, 575 S.E.2d 482 (2003); Dupree v. State, 267 Ga. App. 561, 600 S.E.2d 654 (2004); Gant v. State, 291 Ga. App. 823, 662 S.E.2d 895 (2008); Port v. State, 295 Ga. App. 109, 671 S.E.2d 200 (2008); Hickman v. State, 311 Ga. App. 544, 716 S.E.2d 597 (2011); Fairwell v. State, 311 Ga. App. 834, 717 S.E.2d 332 (2011); Freeman v. State, 329 Ga. App. 429, 765 S.E.2d 631 (2014).

Application

Unexplained possession of recently stolen goods can be used in conjunction with other evidence to infer guilty knowledge, but standing alone it will not support the inference or authorize a conviction. Storey v. State, 162 Ga. App. 763, 292 S.E.2d 483 (1982).

Instruction that recent possession of stolen property may establish criminal intent.

- In prosecution for receiving stolen property, judge's instruction to jury "that recent possession of stolen property without satisfactory explanation is sufficient to establish criminal intent" was error, despite proper instruction on burden of proving criminal intent, and required reversal. Williams v. State, 159 Ga. App. 865, 285 S.E.2d 597 (1981).

Effect of testimony contradicting denial of intent.

- When defendant's posture is one of admitting presence and cooperation for one criminal purpose (stealing money from the cash register), but denying the intent of participating in an armed robbery, the matter thus essentially involves the credibility of the defendant; and if the defendant's explanation of the incident is contradicted by the testimony of the police officers, the hotel employee, and the victims, the jury is authorized to reject the explanation. Parham v. State, 166 Ga. App. 855, 305 S.E.2d 599 (1983).

Flight as indication of sense of guilt.

- Act which constituted possession - flight from police with contraband - itself furnishes evidence of defendant's guilt and defendant's criminal intention to conceal incriminating evidence, just as evidence has been attempted to be concealed by such means as throwing it out of car windows. Haire v. State, 133 Ga. App. 12, 209 S.E.2d 681 (1974).

Flight upon seeing one whom accused has reason to believe may accuse him of specific crime may be shown as indication of sense of guilt. Jarmello v. State, 152 Ga. App. 741, 264 S.E.2d 34 (1979).

Defendant's attempts to interfere with the execution of search warrants, to flee, and to evade the police by hiding in a closet constituted evidence of defendant's consciousness of guilt and intention to exercise control over contraband. Moody v. State, 232 Ga. App. 499, 502 S.E.2d 323 (1998).

Intent to arouse or satisfy sexual desires.

- In a prosecution for child molestation, where the evidence established that defendant exposed the defendant's genitals to a child under the age of 14, although defendant argued that the defendant had a different intention in exposing the defendant's genitals, it could be inferred from the act of exposure that the defendant did so with intent to arouse or satisfy the defendant's sexual desires. Hathcock v. State, 214 Ga. App. 188, 447 S.E.2d 104 (1994).

Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this; the defendant's manual stimulation of the child victim's genitals allowed the jury to infer that the defendant acted with an improper intent, and the defendant's conviction for child molestation was affirmed. Holloway v. State, 268 Ga. App. 300, 601 S.E.2d 753 (2004).

Jury was presented with sufficient evidence to find the defendant guilty of child molestation in violation of O.C.G.A. § 16-6-4(a)(1) because the testimony of the defendant's former wife regarding what she observed on the night in question, i.e., that the defendant and the victim were asleep together with their underwear pulled down and that she saw what appeared to be fecal matter smeared on the victim's buttocks and the bed sheets, was sufficient for the jury to conclude that the victim's and the defendant's otherwise inexplicable mutual exposure was for the purpose of satisfying the defendant's own sexual desires. DeLong v. State, 310 Ga. App. 518, 714 S.E.2d 98 (2011).

Evidence that a defendant became highly intoxicated while having visitation with his seven-year-old daughter, that he licked her vagina, kissed her with his tongue in her mouth, and made her rub her hand on his penis was sufficient to support convictions for aggravated child molestation in violation of O.C.G.A. § 16-6-4(c). A jury could infer from the evidence that the defendant's intent was to arouse and satisfy his sexual desires, pursuant to O.C.G.A. § 16-2-6. Obeginski v. State, 313 Ga. App. 567, 722 S.E.2d 162 (2012), cert. denied, No. S12C0908, 2012 Ga. LEXIS 1013 (Ga. 2012).

Evidence authorized the jury to infer that the defendant touched the victim child's vagina over clothing and that the defendant intended to arouse the defendant's sexual desires or those of the victim as there was evidence that the defendant specifically called the victim to the defendant, sat the victim on the defendant's lap, placed a hand on the victim's vagina over the victim's clothes, and held a hand there for up to a minute. Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018).

Prior act of driving under the influence is relevant to prove bent of mind or course of conduct. Tam v. State, 231 Ga. App. 15, 501 S.E.2d 51 (1998).

In a driving under the influence (DUI) per se case, the defendant's prior DUI conviction was improperly admitted to show intent as the probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the jury could infer intent from the defendant's act of driving after admittedly consuming alcohol without considering the prior DUI, and there was a danger of interjecting unfair prejudice at trial; however, admission of that evidence was harmless as the direct evidence of the defendant's guilt for the DUI-per se charge was overwhelming as the defendant admitted to consuming alcohol, and the breath tests showed the defendant's blood alcohol content was substantially in excess of 0.08 grams. Jones v. State, 301 Ga. 544, 802 S.E.2d 234 (2017).

Prior offenses of same sort, by themselves, fail to prove intent.

- If no modus operandi or other logical connection between prior offenses committed by defendant and case on trial is shown, mere fact that other offenses were of same sort as one for which defendant is on trial is not sufficient to prove intent. Kent v. State, 128 Ga. App. 132, 195 S.E.2d 770 (1973).

Driving car into police officer.

- Evidence that defendant drove a car through a roadblock toward a uniformed officer who was clearly visible was sufficient to find the requisite intent for aggravated assault. Thrasher v. State, 225 Ga. App. 717, 484 S.E.2d 755 (1997).

Evidence sufficient for shoplifting conviction.

- Evidence concerning defendant's conduct, evidencing intent to participate in theft, was sufficient for conviction of shoplifting. Carter v. State, 188 Ga. App. 464, 373 S.E.2d 277 (1988); Watson v. State, 214 Ga. App. 645, 448 S.E.2d 752 (1994).

Jury was authorized to find that the defendant acted with guilty knowledge and intent to commit credit card theft in violation of O.C.G.A. § 16-9-31(a)(1) because the evidence established that the defendant obtained unauthorized possession of the victim's credit card and there was circumstantial evidence from which an inference could be drawn that the defendant had knowledge that the defendant was accepting the credit card without authority and as part of an unlawful scheme; when the defendant was confronted by police officers, the defendant fled, and the defendant maintained unauthorized possession of a different credit card, along with additional items that could be used to engage in fraudulent credit transactions. Amaechi v. State, 306 Ga. App. 333, 702 S.E.2d 680 (2010).

Intent in aggravated sodomy case.

- Trial judge was authorized to find beyond a reasonable doubt that the defendant acted with the criminal intent to commit the prohibited act of aggravated sodomy by placing the defendant's genitals in the victim's mouth with force and against the victim's will. Since there was no evidence that the trial court did not make the requisite finding regarding criminal intent, the appellate court found no error. Sims v. State, 267 Ga. App. 572, 600 S.E.2d 613 (2004).

Circumstances showing knowledge in possession of cocaine case.

- Evidence was sufficient to show that defendants knowingly possessed cocaine, as was required to support their convictions under O.C.G.A. § 16-13-31(a)(1)(C) for trafficking in cocaine; their criminal intention was shown by the fact that when stopped by a police officer for a traffic offense and a seat belt violation, their stories contradicted each other, their car smelled of air freshener, they could not explain who owned the car nor produce a vehicle registration for the vehicle that they were traveling in, and related circumstances from which a jury could infer that they knew about the large quantity of cocaine that was hidden in a secret compartment in their car, despite their claims that they did not know about the cocaine. Fernandez v. State, 275 Ga. App. 151, 619 S.E.2d 821 (2005).

Circumstances showing trafficking in cocaine.

- Defendant's intent to be a party to the crime of trafficking in cocaine was established by evidence that the defendant was aware that an alleged drug dealer kept cocaine in the house where the defendant was arrested, that the dealer doled cocaine out to the defendant and others so that they could sell the cocaine, that the defendant had sold cocaine for the dealer in the past and had stated the intent to do so on the day the defendant was arrested, that cocaine found in defendant's possession had the same packaging as cocaine found in the basement of the house, and that when the police arrived to execute a search warrant, the defendant attempted to destroy the cocaine the defendant had in the defendant's physical possession. Riley v. State, 292 Ga. App. 202, 663 S.E.2d 835 (2008).

Intention regarding drug trafficking.

- Evidence supported a jury's verdict that the defendants had access, power, and intention to exercise control or dominion over drugs found in a home the defendants did not rent or own, including evidence that defendants' belongings were in the home, that the defendants both had keys to the home, and that one of the defendant's vehicle had been parked outside the home through several days of surveillance. Lott v. State, 303 Ga. App. 775, 694 S.E.2d 698 (2010).

Evidence sufficient for possession of dangerous drugs conviction.

- Jury was authorized to conclude that the defendant intended to possess a dangerous drug in violation of the Dangerous Drug Act, O.C.G.A. § 16-13-70 et seq., even if the defendant was subjectively unaware of the precise chemical compound in the bottle and its regulated nature because there was evidence supporting an inference that the defendant used a dangerous drug to sedate the defendant's sexual battery victim, and that conduct demonstrated the defendant's knowledge of the harmful effect of the compound; the term "dangerous drug" was defined to include alkyl nitrite, which was the compound the defendant possessed. Serna v. State, 308 Ga. App. 518, 707 S.E.2d 904 (2011).

Intent to assist in possession and sale of marijuana.

- There was sufficient evidence of knowledge and intent to assist with or participate in the crime of possession of marijuana with intent to distribute when a defendant drove the defendant's roommate to a location in another county and the roommate brought along a sealed, insulated bag, which the defendant placed in the back compartment of the car. Able v. State, 312 Ga. App. 252, 718 S.E.2d 96 (2011).

Sufficient evidence of malicious intent.

- While a person was not presumed to act with criminal intent, the jury was entitled to conclude that defendant acted with malicious intent in wounding the victim since defendant admitted to wanting to confront the victim, defendant began verbal and physical altercations with the victim, defendant's demeanor and conduct were very hostile and violent during the confrontation, and defendant swung defendant's own hand at the victim's head several times, resulting in multiple cuts to the victim's head which required 30 staples to close. Campbell v. State, 258 Ga. App. 863, 575 S.E.2d 748 (2002).

Existence of general criminal intent necessary to support convictions for aggravated assault could be inferred from the defendant's acts in leaving the scene of the altercation the defendant had with the defendant's sibling, returning with a gun, and firing into a truck cab where the person who had broken up the altercation and the defendant's spouse were sitting as they prepared to leave the scene. Bishop v. State, 266 Ga. App. 129, 596 S.E.2d 674 (2004).

Sufficient evidence of participation in robbery.

- Defendant's aggravated assault and robbery convictions were upheld on appeal as evidence including the defendant's admission and flight from the scene authorized the jury to conclude that the defendant went to an apartment complex intending to participate in the robbery, and in fact participated in the robbery by acting as a lookout and an additional show of force; hence, the jury was authorized to infer criminal intent from the defendant's conduct before, during, and after the commission of the crime. Millender v. State, 286 Ga. App. 331, 648 S.E.2d 777 (2007), cert. denied, No. S07C1717, 2008 Ga. LEXIS 80 (Ga. 2008).

Intent in aggravated assault case.

- In a prosecution for aggravated assault, O.C.G.A. § 16-5-21(a)(2), the defendant argued that the evidence showed that the defendant did not intend to shoot the victim but acted in self-defense. This claim failed because under O.C.G.A. § 16-2-6 whether the defendant committed the act with criminal intent was a question of fact for the jury. Gordon v. State, 294 Ga. App. 908, 670 S.E.2d 533 (2008).

Evidence of intent on charge of theft by conversion.

- Defendant's conviction of theft by conversion, O.C.G.A. § 16-8-4(a), was supported by sufficient evidence; evidence of defendant's failure to return a rented wood chipper, admitted lies regarding defendant's address and phone number, and defendant's flight after charges were filed was sufficient under O.C.G.A. § 16-2-6 for the jury to conclude that defendant fraudulently converted the chipper to defendant's own use. Terrell v. State, 275 Ga. App. 501, 621 S.E.2d 515 (2005).

Sufficient evidence of intent to rob.

- Trial court did not err in denying the defendant's motion for directed verdict of acquittal on the defendant's aggravated assault with intent to rob convictions because the jury was authorized to conclude that the defendant fired a gun at the victims to further a robbery and the indictment did not charge the defendant with a specific intent to rob the victims but only with a general intent to rob; the defendant approached the victims, pointed a gun toward the head of one of the victims, and demanded money, and after robbing that victim, the defendant fled and fired several shots at the porch where the victims had been standing and at the victims once the victims began chasing the defendant. Johnson v. State, 304 Ga. App. 371, 696 S.E.2d 396 (2010).

Intent to make terroristic threats.

- Defendant was properly convicted of terroristic threats in violation of O.C.G.A. § 16-11-37(a) because the jury was presented with sufficient evidence by which to find that the defendant intended to terrorize officers by communicating a threat to blow up the defendant's home using propane; although there was testimony that the defendant suffered from a history of mental illness, the defendant did not plead the affirmative defense of insanity, and the issue of the defendant's criminal intent was a question of fact for the jury, which was presented with sufficient evidence to establish the requisite criminal intent. Layne v. State, 313 Ga. App. 608, 722 S.E.2d 351 (2012).

Evidence was sufficient for the jury to find that the defendant intended to terrorize the victims based on the defendant yelling at an officer trying to restrain the defendant that the defendant was going to kill the officer and the officer's family. Harper v. State, 337 Ga. App. 57, 785 S.E.2d 691 (2016).

Sufficient intent to kidnap.

- Jury was authorized to find that the defendant had the requisite criminal intent from the fact that the defendant approached the victim who the defendant did not know and offered the victim money. Upon approaching the victim, the defendant grabbed the victim, lifted the victim up, and carried the victim away against the victim's will. Thomas v. State, 320 Ga. App. 101, 739 S.E.2d 417 (2013).

Victims entered bedroom on own volition.

- Evidence was sufficient to support the defendant's aggravated assault convictions but insufficient to support false imprisonment convictions because at no time did the defendant arrest, confine, or detain either victim in the bedroom but the defendant knew one victim was in the bedroom when the defendant knowingly assaulted that victim with a deadly weapon by shooting through the bedroom door. Miller v. State, 305 Ga. 276, 824 S.E.2d 342 (2019).

RESEARCH REFERENCES

Am. Jur. 2d.

- 29 Am. Jur. 2d, Evidence, §§ 281, 439 et seq. 75 Am. Jur. 2d, Trial, §§ 324, 325, 326.

C.J.S.

- 22 C.J.S., Criminal Law: Substantive Principles, § 34 et seq.

ALR.

- Criminal responsibility of one who acts as decoy to detect commission of crime, 120 A.L.R. 1506.

Series of takings over a period of time as involving single or separate larcenies, 53 A.L.R.3d 398.

Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.

Remoteness in time of other similar offenses committed by accused as affecting admissibility of evidence thereof in prosecution for sex offense, 88 A.L.R.3d 8.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.

ARTICLE 2 PARTIES TO CRIMES

Law reviews.

- For article, "Disruptive Innovation in Criminal Defense: Demanding Corporate Criminal Trials," see 69 Mercer L. Rev. 825 (2018).

JUDICIAL DECISIONS

Allegations in accusation.

- Although the state must prove the applicable provisions of O.C.G.A. T. 16, Ch. 2, Art. 2 at trial against a criminal defendant, it is not necessary that the state allege these provisions in the accusation. State v. Military Circle Pet Ctr. No. 94, Inc., 257 Ga. 388, 360 S.E.2d 248 (1987).

RESEARCH REFERENCES

ALR.

- Criminal responsibility of one who acts as decoy to detect commission of crime, 120 A.L.R. 1506.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

16-2-20. When a person is a party to a crime.

  1. Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.
  2. A person is concerned in the commission of a crime only 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.

(Code 1933, § 26-801, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For article, "State v. Jackson and the Explosion of Liability for Felony Murder," see 62 Mercer L. Rev. 1335 (2011). For article, "Individual Accountability for Corporate Crime," see 34 Ga. St. U. L. Rev. 335 (2018). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B. J. 124 (1970). For note discussing the felony murder rule, and proposing legislation to place limitations on Georgia's felony murder statute, see 9 Ga. St. B. J. 462 (1973).

JUDICIAL DECISIONS