2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 4 - Criminal Attempt, Conspiracy, and Solicitation
§ 16-4-3. Charge of Commission of Crime as Including Criminal Attempt

Universal Citation: GA Code § 16-4-3 (2020)

A person charged with commission of a crime may be convicted of the offense of criminal attempt as to that crime without being specifically charged with the criminal attempt in the accusation, indictment, or presentment.

(Code 1933, § 26-1005, enacted by Ga. L. 1968, p. 1249, § 1.)

Law reviews.

- For article, "A Comprehensive Analysis of Georgia RICO," see 9 Ga. St. U. L. Rev. 537 (1993).

JUDICIAL DECISIONS

Controlled substance violations.

- O.C.G.A. § 16-13-33 concerning attempt in no way affects operation of O.C.G.A. § 16-4-3; rather it renders the penalty in O.C.G.A. § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act, O.C.G.A. Ch. 13, T. 16. Davis v. State, 164 Ga. App. 633, 298 S.E.2d 615 (1982).

It was not error to charge the jury on attempt because there was evidence regarding defendant's attempt to sell cocaine in the county in which defendant was charged before completing a purchase and sale in another county. Singleton v. State, 229 Ga. App. 135, 493 S.E.2d 556 (1997).

Predicate acts for purposes of RICO prosecution.

- Jurisdiction under 28 U.S.C. § 1331 did not exist in a borrower's suit asserting various claims against a lender and an appraiser in connection with a loan that encumbered the borrower's property with a debt that exceeded the property's value. Athough the borrower alleged that the lender violated 18 U.S.C. §§ 1341 and 1343 as predicate acts under O.C.G.A. § 16-14-3(9)(A) of Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act, O.C.G.A. § 16-14-1 et seq., that did not require the court to interpret the federal statutes; further, the borrower also asserted that the lender violated state statutes that could serve as predicate acts under Georgia's RICO law. Austin v. Ameriquest Mortg. Co., 510 F. Supp. 2d 1218 (N.D. Ga. Feb. 27, 2007).

One may be charged with a crime and convicted only of attempt if evidence warrants. Finley v. State, 139 Ga. App. 495, 229 S.E.2d 6 (1976).

Evidence was sufficient to convict defendants who were indicted for burglary of attempted burglary; it was not necessary that the offense of attempted burglary be charged in the indictment in order for defendants to be found guilty of attempted burglary. Climpson v. State, 253 Ga. App. 485, 559 S.E.2d 495 (2002).

Evidence sufficient for giving charge on criminal attempt.

- See Plummer v. State, 168 Ga. App. 108, 308 S.E.2d 210 (1983).

Although the codefendants argued that since the codefendants were not indicted for attempting to obtain a motor vehicle by force, the trial court should not have given the jury the opportunity to convict the codefendants of attempting to obtain a motor vehicle by charging the entire statute; nevertheless, a person indicted for a specific crime could be convicted of attempt of the specific crime without an attempt charge being listed in the indictment, O.C.G.A. § 16-4-3. The specific statutory inclusion of attempt as a method of committing the crime of hijacking a motor vehicle did not alter the general rule that an attempt could be proven and charged without being indicted; accordingly, the trial court did not err in the court's charge to the jury on the offense of hijacking a motor vehicle. Daniels v. State, 306 Ga. App. 577, 703 S.E.2d 41 (2010).

Rule of lenity inapplicable.

- With regard to defendant's conviction for criminal attempt to commit burglary in the first degree, the trial court did not err in not applying the rule of lenity because the crimes of criminal trespass and criminal attempt to commit a burglary do not address the same criminal conduct and there was no ambiguity created by different punishments being set forth for the same crime; thus, the rule of lenity did not apply. Snow v. State, 318 Ga. App. 131, 733 S.E.2d 428 (2012).

Evidence sufficient for attempted aggravated child molestation conviction.

- Trial court did not err in denying the defendant's motion for a directed verdict on the count of an indictment charging the defendant with attempted aggravated child molestation because the defendant was convicted only of the offense of criminal attempt, which was supported by the evidence, and the defendant could be convicted of the lesser-included offense of criminal attempt pursuant to a proper jury instruction. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77 (2010).

Instruction on attempted statutory rape proper.

- Trial court did not err in charging the jury on attempted statutory rape, O.C.G.A. §§ 16-4-1 and16-6-3(a), because the court's instruction to the jury was properly tailored to fit the allegations in the indictment and the evidence admitted at trial; the victim testified that the defendant positioned himself between her legs with his pants unbuttoned and that the two of them were about to engage in sexual intercourse before the victim's grandfather came into her bedroom, and based on that evidence, a rational trier of fact could conclude that the defendant attempted to have sexual intercourse with a person under the age of 16. Judice v. State, 308 Ga. App. 229, 707 S.E.2d 114 (2011).

Cited in Lingo v. State, 226 Ga. 496, 175 S.E.2d 657 (1970); Rozier v. State, 124 Ga. App. 481, 184 S.E.2d 203 (1971); Bryant v. State, 146 Ga. App. 43, 245 S.E.2d 333 (1978); Maddox v. State, 152 Ga. App. 384, 262 S.E.2d 636 (1979); Collins v. State, 164 Ga. App. 482, 297 S.E.2d 503 (1982); Schwerdtfeger v. State, 167 Ga. App. 19, 305 S.E.2d 834 (1983); Gatlin v. State, 199 Ga. App. 500, 405 S.E.2d 118 (1991); Jenkins v. State, 284 Ga. 642, 670 S.E.2d 425 (2008); Calloway v. State, 303 Ga. 48, 810 S.E.2d 105 (2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 149. 41 Am. Jur. 2d, Indictments and Informations, §§ 106, 282.

C.J.S.

- 42 C.J.S., Indictments and Information, § 317.

ALR.

- Attempt to commit assault as criminal offense, 79 A.L.R.2d 597.

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