holding that to prove the use of a deadly or offensive weapon that put 6 Case: 15-40208 Document: 00513475803 Page: 7 Date Filed: 04/21/2016 No. 15-40208 the victim in a reasonable apprehension of immediately receiving a violent injury, the State must prove the intent to commit the act of using a deadly or offensive weapon, not an intent to make the victim apprehensive
How later courts described this case
- holding that to prove the use of a deadly or offensive weapon that put 6 Case: 15-40208 Document: 00513475803 Page: 7 Date Filed: 04/21/2016 No. 15-40208 the victim in a reasonable apprehension of immediately receiving a violent injury, the State must prove the intent to commit the act of using a deadly or offensive weapon, not an intent to make the victim apprehensive
- holding that to prove the use of a deadly or offensive weapon that put the victim in a reasonable apprehension of immediately receiving a violent injury, the State must prove the intent .to commit the act of using a deadly or offensive weapon, not an intent to make the victim apprehensive
- “[R]eckless disregard for human life may be the equivalent of a specific intent to kill.”
- malice murder is commit- ted when the evidence establishes “an express or, in the alternative, an implied intent to commit an unlawful homicide”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Linson v. State, 287 Ga. 881 (2010)
270 Ga. 256 ( 507 SE2d 744 ) (1998), overruled in part on other grounds by Linson v. State, 287 Ga. 881, 886
The opinion
Hines, Justice,
concurring.
I write separately because I disagree with the statements in Division 1 that the trial court erred in ruling that the conviction for cruelty to children merged into the conviction for malice murder for the purpose of sentencing. McCartney v. State, 262 Ga. 156, 160 (5) ( 414 SE2d 227 ) (1992), cited in the opinion, involved evidence of childhood maltreatment syndrome or abused child syndrome, and does not stand for the proposition that the offense of cruelty to children can never be included as a matter of fact in the crime of malice murder. Here, in accord with Malcolm v. State, 263 Ga. 369, 372 (5) ( 434 SE2d 479 ) (1993), the trial court made the finding that the underlying felony did merge as a matter of fact into the malice murder count, and the correctness of that factual determination is not at issue in the appeal.
I am authorized to state that Presiding Justice Fletcher joins in this concurrence.