2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 2 - Criminal Liability
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.)

- 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.

- 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).

ANALYSIS

• General Consideration
• Intent
• Criminal Negligence

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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

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).

- 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 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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.

- 22 C.J.S., Criminal Law: Substantive Principles, §§ 28, 35, 41.