Jowers v. State , 259 Ga. 401 ( 1989 )

259 Ga. 401 (1989) 382 S.E.2d 595

JOWERS
v.
THE STATE.

S89A0047.

Supreme Court of Georgia.

Decided September 8, 1989.

Clayton Jones, Jr., for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, Michael J. Bowers, Attorney General, Andrew S. Ree, for appellee.

SMITH, Justice.

Appellant Shirley Dean Jowers was indicted for the malice murder, felony murder, and aggravated assault of Willie D. Muff. A jury found her not guilty of malice murder, but did find her guilty of aggravated assault and felony murder. She was sentenced to a term of ten years for the aggravated assault and life imprisonment for the murder. We affirm the conviction and sentence for felony murder and find that the offense of aggravated assault is a lesser included offense of felony murder and merges therewith.^[1]

The appellant and the victim had lived together for nine years and had two children. They were arguing when the appellant stabbed the victim in the chest with a butcher knife.

One of the victim's brothers testified that prior to the stabbing, the appellant, with butcher knife in hand, said: "You'd better get Willie out of here before I kill him." Another brother testified that she said: "Get Willie D. out of here or I will stick him again." The brothers further testified that the appellant initially refused to allow anyone to use her car to take the victim for help despite the pleas of the victim and his brothers.

The appellant testified that she did not intend to kill the victim and that he was stabbed when they fell during the argument. She denied that she threatened to kill the victim and that she refused to take the victim to the hospital.

The appellant's motion in limine to prevent the state from introducing any evidence about a $100,000 insurance policy on the victim's life was denied. The jury heard testimony that the appellant was the sole beneficiary of a $100,000 life insurance policy on the victim's life.

1. The appellant may not lawfully be convicted and sentenced for felony murder and the underlying felony of aggravated assault. Proof of the felony is essential to support the felony murder conviction, thus, it is a lesser included offense and must be vacated. OCGA § 16-1-6, and see Addison v. State, 239 Ga. 622 (238 SE2d 411) (1977).

2. Under the facts of this case the trial court did not err in denying the motion in limine regarding the insurance policy nor in charging the jury on malice murder.

3. The evidence was sufficient under Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979) to support the felony murder conviction.

Judgment affirmed in part and reversed in part. All the Justices concur.

NOTES

[1] The crime was committed on December 4, 1988. The Stewart County jury returned its verdict of guilty on April 4, 1989. Notice of Appeal was filed on April 27, 1989. The transcript of evidence was filed on May 23, 1989. The record was docketed in this Court on May 26, 1989. The case was submitted by brief on July 7, 1989.