Hendrick was indicted and tried for the malice murder and felony murder of his two-year-old son. He was convicted on both counts, but the trial court sentenced him to life in prison only on the malice murder count.1 We vacate the conviction and sentence on the malice murder count, and order that the trial court impose a life sentence on the felony murder count.
Medical evidence established that the victim had arm fractures, bruises, and head injuries consistent with child abuse; that the abuse occurred over a period of several weeks; and that the cause of death was blunt head trauma that damaged the brain. Hendrick’s wife was also tried and convicted of the murder of the child, and her conviction has been affirmed on appeal. Hendrick v. State, 257 Ga. 17 (354 SE2d 433) (1987).
1. The appellant orally requested a jury charge on alibi, but the trial court refused to so charge the jury. Hendrick enumerates this failure as error. There is no evidence to indicate that Hendrick was not present during the time in which the child’s injuries occurred. On the contrary, the record indicates that the child was in Hendrick’s joint custody during the period of time in question. The evidence therefore did not warrant a charge on alibi, and the court did not err in refusing to give one. Copeland v. State, 241 Ga. 370 (1) (245 SE2d 642) (1978). See generally Harper v. State, 249 Ga. 46 (3) (287 SE2d 211) (1982).
2. Hendrick claims the trial court erred in submitting to the jury both the malice murder and felony murder counts. We disagree. Under OCGA § 16-1-7 (a), “[w]hen the same conduct of an accused *515may establish the commission of more than one crime, the accused may be prosecuted for each crime.” The state thus appropriately indicted and tried Hendrick on both counts. See Dunn v. State, 251 Ga. 731 (5) (309 SE2d 370) (1983). Moreover, the trial court properly imposed only one life sentence on Hendrick. OCGA § 16-1-7 (a); Biddy v. State, 253 Ga. 289 (2) (319 SE2d 842) (1984).
3. In his third enumeration of error Hendrick contends that the evidence is not sufficient to support his conviction. Although it is problematic whether the evidence is sufficient to support the malice murder conviction, we conclude that it is sufficient to support the felony murder conviction.2 The underlying felony used to support the felony murder conviction was the offense of cruelty to children. OCGA § 16-5-70. The evidence shows that Hendrick lived with the victim during the period of time in which the severe beatings in question were administered to the child; that Hendrick gave deceitful answers during a polygraph examination (the state and Hendrick stipulated to the admissibility of the results of the exam); that Hendrick previously abused another of his children; and that Hendrick showed no emotion when told of the impending death of his child. We conclude that the evidence shows that the death of Hendrick’s son occurred while Hendrick was in the commission of the felony of cruelty to children, and is sufficient to satisfy the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We therefore vacate the conviction and sentence on the malice murder count, and order that the trial court impose a life sentence on the felony murder count.
Judgment affirmed.
All the Justices concur, except Smith and Bell, JJ., who dissent as to Division 3 and to the judgment.The child died February 10, 1984. Hendrick and his wife were jointly indicted on June 14, 1984. Hendrick was convicted on March 20, 1985, and sentenced on the malice murder charge on March 22, 1985. A motion for new trial was filed on March 25,1985. The transcript was certified by the court reporter on July 7, 1986. A hearing on the motion for new trial was held October 21, 1986, and the trial court orally denied the motion at that time. The notice of appeal was filed on December 19, 1986. The case was docketed on April 14, 1987, and submitted for decision without oral arguments on June 3, 1987. An order denying the motion for new trial was entered on July 17, 1987, nunc pro tunc to October 21, 1986. We note that the fact that Hendrick’s notice of appeal was prematurely filed does not operate to defeat his right of appeal. Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975); Stewart v. State, 257 Ga. 211, fn. 1 (356 SE2d 515) (1987).
The fact that the trial court only sentenced Hendrick on the malice murder count does not nullify the conviction on the felony murder count, which was properly submitted to the jury. Because Hendrick could not be punished twice for the same conduct, see OCGA § 16-1-7 (a), it would have been improper for the trial court to have imposed more than one life sentence.