# Dunagan v. State > Supreme Court of Georgia · July 16, 1998 · 269 Ga. 590 URL: https://www.frixlaw.com/law-library/cases/9849758 ## Case - **Full name:** Dunagan v. the State - **Court:** Supreme Court of Georgia - **Decided:** July 16, 1998 - **Citations:** 269 Ga. 590; 502 S.E.2d 726; 1998 Ga. LEXIS 751 - **Precedential status:** Published - **Opinion:** Dissent by Carley - **Judges:** Hunstein, Carley - **Cited by:** 74 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by Parker v. State, 270 Ga. 256 (1998). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9849758 ## How later opinions describe it (automated extraction) - explaining that aggravated assault with a deadly weapon based on OCGA§ 16-5-20 (a) (1) cannot be committed by criminal negligence, but requires an intent to injure and that threatened or actual injury to a victim by a deadly weapon resulting from a defendant’s criminal neglige… - explaining that aggravated assault with a deadly weapon based on OCGA§ 16-5-20 (a) (1 - holding it is not necessary to overrule dicta ## Opinion text Carley, Justice, dissenting. The majority concludes that it was harmless error to instruct the jury that the crime of aggravated assault as defined in OCGA § 16-5-20 (a) (2) can be committed by an act of criminal negligence, but that it was reversible error to charge that an aggravated assault under OCGA § 16-5-20 (a) (1) can be committed by such an act. In my opinion, there was no error at all because the charge was a correct statement of the law as to the commission of an aggravated assault under either subsection (a) (1) or (a) (2) of OCGA § 16-5-20, and was adjusted to the facts of this case. Accordingly, I dissent to the reversal of Dunagan’s conviction for felony murder. Intention and criminal negligence are not identical definitional elements of a crime. They are distinctly different elements, one of which must operate with the proscribed act or omission “ “for a violation of a statute to constitute a crime in Georgia. . . .” Daniels v. State, 264 Ga. 460, 464 (2) (b) ( 448 SE2d 185 ) (1994). As an alternative element, “ C[c]riminal negligence may sometime[s] be a sufficient substitute for deliberate intention in the commission of [a] crime.’ [Cit.]” J.A.T. v. State of Ga., 133 Ga. App. 922, 923 (1) ( 212 SE2d 879 ) (1975). Dunagan was charged with committing aggravated assault by “shooting” Jason Freund. Although Dunagan claimed that he did not intend that the pistol actually fire, the undisputed evidence shows that he intentionally pointed a loaded revolver directly at Freund and then deliberately pulled the trigger. Compare Bowers v. State, 177 Ga. App. 36, 39 (2) ( 338 SE2d 457 ) (1985) (target practice). Thus, even though Dunagan may not have intended that the pistol actually discharge, he nevertheless fired a shot under circumstances which evidence an utter disregard for the safety of Freund who might reasonably be expected to be injured or frightened. See Stiles v. State, 264 Ga. 446, 448 (2) ( 448 SE2d 172 ) (1994). The Court of Appeals has recognized that, under such circumstances, the defendant can be found guilty of commission of a criminally negligent aggravated *596 assault. Fambro v. State, 164 Ga. App. 359 (1) ( 297 SE2d 111 ) (1982). See also Osborne v. State, 228 Ga. App. 758 ( 492 SE2d 732 ) (1997); Jordan v. State, 214 Ga. App. 598, 601 (2) ( 448 SE2d 917 ) (1994). These Court of Appeals opinions are consistent with those of other jurisdictions which have held that an aggravated assault can be committed through criminal negligence. See 6 AmJur2d, Assault and Battery, § 14. Moreover, the principle that an aggravated assault can be committed through an act of “criminal negligence” is consistent with the long-held view that a homicide resulting from circumstances amounting to the commission of a criminally negligent aggravated assault constitutes the crime of murder. Carrigan v. State, 206 Ga. 707, 718 (2) ( 58 SE2d 407 ) (1950). See also Tiller v. State, 267 Ga. 888, 889 (1) ( 485 SE2d 720 ) (1997); Bishop v. State, 257 Ga. 136, 138 (1) ( 356 SE2d 503 ) (1987). The majority concludes that Carrigan is inapplicable simply because it was decided before the 1968 enactment of our present criminal code. However, it is readily apparent that the pre-1968 statute applied in Carrigan is very closely analogous to our present felony murder statute, which is codified at OCGA § 16-5-1 (c). Therefore, in a post-1968 felony murder case such as this one, it is certainly reasonable to consider cases construing the pre-1968 statutory equivalent of OCGA § 16-5-1 (c). Decided July 16, 1998. Nothing in OCGA § 16-5-21 precludes commission of an “aggravated assault” through criminal negligence. Therefore, although an “aggravated assault” can be committed through an intentional act of “shooting,” I do not believe that a “shooting” must be intentional to constitute an “aggravated assault.” In my opinion, if criminal negligence can substitute for intent in the crime of malice murder, then, as Fambro v. State, supra, and other Court of Appeals cases hold, it can substitute for the intent to injure or frighten in the crime of aggravated assault with a deadly weapon. Thus, where, as here, the defendant is charged with “shooting” the victim and the evidence shows that the homicide occurred when the defendant intentionally aimed a pistol and deliberately pulled the trigger, the offense is felony murder while in the commission of an aggravated assault. A verdict of guilty of such offense would be authorized even if the defendant did not intend to injure or frighten the victim and even if the actual discharge of the gun was unintended. Stiles v. State, supra at 447 (1, 2). See also Ross v. State, 268 Ga. 122, 123 (3) ( 485 SE2d 780 ) (1997). Compare Bowers v. State, supra. There was no error in the trial court’s charge, and, therefore, I dissent to the reversal of the judgment of conviction and sentence imposed upon Dunagan for the felony murder of Freund. *597 Garrett & Gilliard, Michael C. Garrett, for appellant. Daniel J. Craig, District Attorney, Charles R. Sheppard, Kelly R Brashear, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Elizabeth L. Jaeger, Assistant Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee. James C. Bonner, Jr., amicus curiae. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9849758. Public record. Not legal advice.