Chester v. State , 262 Ga. 85 ( 1992 )

Weltner, Presiding Justice,

concurring.

1. (a) In Division 2 (b), the majority relies upon State v. Williams, 247 Ga. 200 (275 SE2d 62) (1981) for the proposition that the separate offenses of malice murder and vehicular homicide properly are joined — in a single count of an indictment.

(b) In Division 2 (c), the majority relies upon Foster v. State, 239 Ga. 302 (236 SE2d 644) (1977) for the proposition that the indictment did not allege that the vehicular offense could constitute the malice requisite to the offense of murder.

Decided March 20, 1992. Bert W. Cohen, Jane P. Manning, for appellant. Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, Michael J. Bowers, Attorney General, Mary H. Hines, Staff Attorney, for appellee.

(c) In Division 5, the majority considers the trial court’s charge as a whole and concludes that the charge would not have led the jury to believe that criminal negligence could form the basis for a finding of malice.

2. It is an absurd rule that permits in an indictment the conflation of the charges, even though the indictment, by its terms, so alleges. The rule should be changed.