holding that the phrase “causes the death of another human being” in our felony murder statute, see OCGA § 16-5-1 (c), means proximate causation; stating that, in homicide cases, when a defendant inflicts an injury, the injury is the proximate cause of death when “(1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a preexisting cause”; and stating that “[p]roximate causation imposes liability for the reasonably foreseeable results of criminal... conduct if there is no sufficient, independent, and unforeseen intervening cause”
How later courts described this case
- holding that the phrase “causes the death of another human being” in our felony murder statute, see OCGA § 16-5-1 (c), means proximate causation; stating that, in homicide cases, when a defendant inflicts an injury, the injury is the proximate cause of death when “(1) the injury itself constituted the sole proximate cause of the death; or that (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or that (3) the injury materially accelerated the death, although proximately occasioned by a preexisting cause”; and stating that “[p]roximate causation imposes liability for the reasonably foreseeable results of criminal... conduct if there is no sufficient, independent, and unforeseen intervening cause”
- holding that when considering whether to overturn a prior holding, the appellate court must consider factors such as “the age of the precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning”
- holding that “the phrase ‘he [or she] causes’ in OCGA § 16- 5-1(c) establishes proximate causation as the standard for liabil- ity in felony murder cases”
- explaining that “[p]roximate causation imposes liability for the reasonably foreseeable results of criminal.. . conduct if there is no sufficient, independent, and unforeseen intervening cause”
Written by the judges who cited it.
The opinion
*661 HUNSTEIN, Chief Justice,
dissenting.
The State charged appellees Jackson and Smith with the felony murder of Daniels, who was shot and killed in self-defense by Hogan after Daniels, together with appellees, attempted to rob Hogan at gunpoint. Relying on State v. Crane, 247 Ga. 779 ( 279 SE2d 695 ) (1981), the trial court dismissed the felony murder charges. In Crane , this Court held that a defendant is not criminally liable for felony murder in those cases where the murder victim was killed by someone other than the defendant or another party to the commission of the underlying felony. Focusing on certain language in the felony murder statute, 9 the majority overrules Crane and reverses the trial court. I cannot agree with the majority for the reason that the holding in Crane is compelled by the plain and unambiguous language in OCGA § 16-2-20, the statute that identifies those persons who may be charged with and convicted of the commission of a crime.
OCGA § 16-2-20 provides:
(a) 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.
(b) 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.
(Emphasis supplied.)
This Court recognized the effect of OCGA § 16-2-20 on the felony murder statute in Hill v. State, 250 Ga. 277 (1) (b) ( 295 SE2d 518 ) (1982). 10 Hill was convicted of the malice murder of police officer Mullinax and the felony murder of Darryl Toles, a bystander who was inadvertently shot by Mullinax when the officer fired back in response to Hill’s attack. Citing Crane , this Court reversed the *662 felony murder conviction because the evidence was clear that Hill “did not directly cause the death of Darryl Toles and may not be convicted therefor.” Id. at 280 (1) (b). In the accompanying footnote this Court pointed out that OCGA § 16-2-20 (former Code Ann. § 26-801)
provides that under certain circumstances, one may be held responsible for a crime one did not directly commit. A review of that Code section shows none of the circumstances to be applicable here. The closest, perhaps, is [OCGA § 16-2-20] (b) (2) which allows a finding of criminal liability where one “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.” (Emphasis supplied.) There is, however, in this case no allegation or evidence that [Hill] intentionally caused Officer Mullinax to shoot Darryl Toles.
Regardless whether or not appellees directly or proximately caused the death of Daniels, as Crane held, there is no question under the facts stipulated by the parties that appellees did not directly commit the alleged crime; hence, they cannot come within the ambit of OCGA § 16-2-20 (b) (1). A review of the indictment establishes that the State does not allege that appellees “intentionally cause [d]” Hogan, the intended armed robbery victim, to shoot and kill Daniels, 11 so that OCGA § 16-2-20 (b) (2) is not applicable. Finally, the facts and allegations present no basis for considering Hogan to be a “person concerned in the commission of” the alleged felony murder under any other provision in OCGA § 16-2-20.
By reinterpreting OCGA § 16-5-1 (c) to authorize defendants such as appellees to be charged with and convicted of felony murder when a defendant unintentionally but “proximately” causes some other person to commit the murder, the majority has judicially rewritten OCGA § 16-2-20 (b) to add a fifth category of criminal liability. Contrary to the majority’s note, neither “[o]ur traditional proximate cause law” nor the questionable case law interpreting OCGA § 40-6-393 (a) authorizes the majority’s cavalier expansion of OCGA § 16-2-20 (b). Maj. Op. p. 655, n. 6. I understand that many *663 members of this Court are frustrated that the Legislature, despite our repeated exhortations, see, e.g., Hyman v. State, 272 Ga. 492, 493 ( 531 SE2d 708 ) (2000) (authored by Carley, J.), has declined to amend OCGA § 16-2-20 to provide for criminal liability in situations of this nature. As currently enacted nothing in OCGA § 16-2-20 makes a person criminally liable when that person unintentionally but proximately causes some other person to commit a crime. But creating this fifth theory of criminal liability all on our own is blatant judicial activism. The Legislature, not this Court, gets to decide whether a person in this type of situation is a party to a crime. I cannot agree to this judicial usurpation of the legislative prerogative. Instead, because OCGA § 16-2-20 (b) expressly provides that a person is concerned in the commission of a crime “only if” he comes within one of its four categories, thereby unambiguously setting forth all legally recognized theories of criminal liability in this State, and there is no allegation or evidence that appellees qualified under any of those four categories as parties to the crime of felony murder, I would hold that the trial court’s dismissal of the felony murder charges against appellees was correct and should be affirmed. Accordingly, I respectfully dissent to the majority’s opinion.
I am authorized to state that Justice Benham joins in this dissent.
Under OCGA § 16-5-1 (c), “[a] person ... commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.”
The majority cites to Hill “albeit with no significant discussion.” Thornton v. Ga. Farm Bureau Mut. Ins. Co., 287 Ga. 379 ( 695 SE2d 642 ) (2010). See Majority Opinion, p. 655.
The pertinent language in the indictment charges appellees “with the offense of MURDER for that [appellees] . . . while in the commission of a felony, to wit: AGGRAVATED ASSAULT as alleged in Count 4 of this Indictment, did cause the death of Jerold Daniels, a human being.” Count 4 alleged that appellees “did unlawfully make an assault upon the person of Arthur Hogan, with a firearm....” The parties stipulated that Hogan was the person appellees intended to rob.