2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 1 - Homicide
§ 16-5-1. Murder; Malice Murder; Felony Murder; Murder in the Second Degree

1. A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.
2. Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.
3. A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.
4. A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.
5. 1. A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.
   2. A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than 30 years.

(Laws 1833, Cobb's 1851 Digest, p. 783; Code 1863, § 4217; Code 1868, § 4254; Code 1873, § 4320; Code 1882, § 4320; Penal Code 1895, § 60; Penal Code 1910, § 60; Code 1933, § 26-1002; Code 1933, § 26-1101, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2009, p. 223, § 1/SB 13; Ga. L. 2014, p. 444, § 1-1/HB 271.)

- Time limitation on prosecution for murder, § 17-3-1.

Denial of right of murderer to inherit from victim, § 53-4-6.

- Ga. L. 2009, p. 223, § 8/SB 13, not codified by the General Assembly, provides that: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, an accused whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act, provided that: (1) jeopardy for the offense charged has not attached or (2) the accused has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking prosecution after the remand."

Ga. L. 2009, p. 223, § 9, not codified by the General Assembly, provides that: "Except as provided in Section 8 of this Act, the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act."

Ga. L. 2009, p. 223, § 10, not codified by the General Assembly, provides that: "A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state." Ga. L. 2011, p. 752, § 17(3) codified these provisions at Code Section 17-10-16.1.

Ga. L. 2009, p. 223, § 11(a), not codified by the General Assembly, provides that the amendment by that Act shall apply to all crimes committed on and after April 29, 2009.

Ga. L. 2009, p. 223, § 11(b), not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For annual survey article discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For annual survey article, "Georgia Death Penalty Law," see 52 Mercer L. Rev. 29 (2000). For article, "State v. Jackson and the Explosion of Liability for Felony Murder," see 62 Mercer L. Rev. 1335 (2011). For article, "Killers Shouldn't Inherit from their Victims - Or Should They?," see 48 Ga. L. Rev. 145 (2013). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For note discussing the felony murder rule, and proposing legislation to place limitations on Georgia's felony murder statute, see 9 Ga. St. B. J. 462 (1973). For note, "An Unconstitutional Fiction: The Felony Murder Rule as Applied to the Supply of Drugs," see 20 Ga. L. Rev. 671 (1986). For note, "Edge v. State: The Modified Merger Rule Comes Up Short," see 44 Mercer L. Rev. 697 (1993). For comment on Battle v. State, 37 Ga. App. 154, 139 S.E. 159 (1927), see 1 Ga. B. J. 51 (1927). For comment on Springer v. State, 37 Ga. App. 154, 139 S.E. 159 (1927), see 1 Ga. B. J. 51 (1927). For comment on Head v. State, 68 Ga. App. 759, 24 S.E.2d 145 (1943), holding year and a day rule applicable in Georgia as a matter of procedure and evidence, see 9 Ga. B. J. 320 (1947). For comment on Gaines v. Wolcott, 119 Ga. App. 313, 167 S.E.2d 366 (1969), see 21 Mercer L. Rev. 325 (1969). For comment on Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976), see 28 Mercer L. Rev. 371 (1976).

ANALYSIS

• General Consideration
• Unlawfulness
• Indictment
• Intent and Malice
• Defenses
• Evidence of Malice
• Felony Murder
• Deadly Weapons
• Jury Instructions
• Death Penalty
• Merger
• Sentence
• Application

RESEARCH REFERENCES

Am. Jur. 2d.

- 40A Am. Jur. 2d, Homicide, §§ 1 et seq., 36 et seq., 63 et seq.

- 40 C.J.S., Homicide, § 2 et seq.

- Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606.

Responsibility of persons participating in jail delivery for homicide committed by one of their number, 15 A.L.R. 456.

Homicide by unlawful act aimed at another, 18 A.L.R. 917.

Homicide by companion of defendant while attempting to escape from scene of crime as murder in first degree, 22 A.L.R. 850; 108 A.L.R. 847.

Homicide as affected by humanitarian motives, 25 A.L.R. 1007.

Death resulting from arson as within contemplation of statute which makes homicide in perpetration of felony murder in first degree, 87 A.L.R. 414.

Corpus delicti in prosecution for killing of newborn child, 159 A.L.R. 523.

Homicide: causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.

Admissibility on behalf of accused in homicide case of evidence that killing was committed at victim's request, 71 A.L.R.2d 617.

Homicide: what constitutes "lying in wait,", 89 A.L.R.2d 1140.

Homicide: presumption of deliberation or premeditation from the circumstances attending the killing, 96 A.L.R.2d 1435.

Homicide by automobile as murder, 21 A.L.R.3d 116.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

Homicide: criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.

Homicide based on killing of unborn child, 40 A.L.R.3d 444, 64 A.L.R.5th 671.

Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341.

Homicide predicated on improper treatment of disease or injury, 45 A.L.R.3d 114.

Use of set gun, trap, or similar device on defendant's own property, 47 A.L.R.3d 646.

What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.

What constitutes attempted murder, 54 A.L.R.3d 612.

Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.

What constitutes termination of felony for purpose of felony-murder rule, 58 A.L.R.3d 851.

Homicide by withholding food, clothing, or shelter, 61 A.L.R.3d 1207.

What constitutes murder by torture, 83 A.L.R.3d 1222.

Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

Judicial abrogation of felony-murder doctrine, 13 A.L.R.4th 1226.

Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 A.L.R.4th 983.

Modern status of the rules requiring malice "aforethought," "deliberation," or "premeditation," as elements of murder in the first degree, 18 A.L.R.4th 961.

Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 A.L.R.4th 861.

Validity and construction of statute defining homicide by conduct manifesting "depraved indifference,", 25 A.L.R.4th 311.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.

Application of felony-murder doctrine where person killed was co-felon, 89 A.L.R.4th 683.

Validity and construction of "extreme indifference" murder statute, 7 A.L.R.5th 758.

Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 A.L.R.5th 497.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Admissibility of evidence of prior physical acts of spousal abuse committed by defendant accused of murdering spouse or former spouse, 24 A.L.R.5th 465.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R.5th 467.

Admissibility of expert or opinion evidence of battered-woman syndrome on issue of self-defense, 58 A.L.R.5th 749.

Propriety of lesser-included-offense charge of voluntary manslaughter to jury in state murder prosecution - Twenty-first century cases, 3 A.L.R.6th 543.

Sufficiency of evidence to support homicide conviction where no body was produced, 65 A.L.R.6th 359.

Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.

Construction and application of "crime of violence" provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the united states after commission of felony offense, 68 A.L.R. Fed. 2d 55.

Offense of Committing Murder In Aid of Racketeering (VICAR) in Drug Enterprise under 18 U.S.C.A. § 1959, 47 A.L.R. Fed. 3d Art. 5.