dissenting.
I reluctantly conclude that the evidence in this case is insufficient to support either Hendrick’s malice murder or felony murder convictions.
1. As for malice murder, I agree, of course, that the evidence clearly shows that the victim was a severely battered child. I further agree that the inescapable conclusion is that either Hendrick or his wife administered the beatings, for they were the only people with the opportunity to do so. However, even assuming that the evidence is sufficient to conclude that Hendrick actually beat the child, it is not *516sufficient to show that he administered the blows to the child’s head, which were the only fatal blows. Perhaps Hendrick only beat the child on the legs or back, and never hit him in the head area. Hendrick’s wife, the victim’s stepmother, did not work outside the home, and therefore spent more time with the victim than Hendrick. It is a reasonable hypothesis that she administered the blows to the child’s head. Since this is an entirely circumstantial evidence case, the state had the burden to exclude that hypothesis. I therefore cannot conclude that the evidence is sufficient to support Hendrick’s malice murder conviction.
2. Hendrick’s felony murder conviction is based on the underlying felony of cruelty to children, see OCGA § 16-5-70. To sustain this conviction, the evidence must show that Hendrick caused the child’s death during the commission of the felony of cruelty to children. OCGA § 16-5-1 (c). Assuming that the evidence cited by the majority1 is sufficient to conclude that Hendrick beat the child and therefore can be said to have committed the felony of cruelty to children, I find, as previously noted, that it is a reasonable hypothesis under the evidence presented that Hendrick’s wife, and not Hendrick, beat the child around the head and therefore caused the child’s death. Thus, I cannot conclude that Hendrick caused the victim’s death during the commission of the felony of cruelty to children.2
3. For future cases such as this one, I would like to note two theories which could have been used to convict Hendrick of malice murder, but which were not presented to the jury.
a. The first is based on our statute concerning parties to a crime. OCGA § 16-2-20. In the instant case, the evidence would have warranted a charge that a person can be charged with and convicted of the commission of a crime if he “intentionally aids or abets in the commission of the crime,” OCGA § 16-2-20 (b) (3). Hendrick, I believe, could have been convicted under this theory, but it was not charged to the jury and cannot be used to affirm Hendrick’s conviction.
b. A different theory which could have been used to support Hendrick’s conviction is based on the concept that one can be held crimi*517nally responsible for an omission to act. It is well-settled in other jurisdictions that a parent can be held criminally responsible for omitting to take proper care of his or her child, and that this responsibility is based on a parent’s duty to protect the child. E.g., Lafave and Scott, Handbook on Criminal Law, § 26 (1972); People v. Burden, 140 Cal. Rptr. 282, 288-293 (Cal. Ct. App. 1977); Biddle v. Commonwealth, 141 SE2d 710 (3) (Va. 1965); Harrington v. State, 547 SW2d 616 (1,2) (Tex. Crim. App. 1977); Commonwealth v. Howard, 402 A2d 674, 676-678 (Pa. Super. Ct. 1979); Goldsmith v. State, 344 S2d 793, 798 (Ala. Crim. App. 1977). Other aspects of the omission-to-act theory are that the parent must have knowledge of the harm (such as starvation or physical pain) to his child, and must have the ability to carry out the steps necessary to protect the child. E.g., Lafave and Scott, supra at 187-189.
This approach to culpability is consistent with Georgia law. OCGA § 16-2-1 defines a crime as “a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” (Emphasis supplied.) Moreover, in Georgia a parent has a statutory duty “to provide for the maintenance, protection, and education of his child. ...” OCGA § 19-7-2. Finally, this court, as well as courts in other jurisdictions, has held that if a parent’s omission to act is malicious or wilful and the child in question dies, then the parent is guilty of murder. E.g., Lewis v. State, 72 Ga. 164 (1883); Lackey v. State, 246 Ga. 331 (8) (271 SE2d 478) (1980); People v. Burden, supra, 140 Cal. Rptr.; Harrington v. State, supra, 547 SW2d; Goldsmith v. State, supra, 344 S2d.
A good illustration of the omission-to-act theory at work is the case of People v. Burden, supra, 140 Cal. Rptr. In that case the court was faced with the question whether the evidence was sufficient to support the second degree murder conviction of the defendant. The evidence showed that the defendant was aware of the starvation of the victim and took no steps to prevent it. The court found that the state had sufficiently proved implied malice, and upheld the conviction. California’s implied malice standard, see, Burden, supra at 291, is the same as the one employed in this state, namely that, the defendant’s conduct must show an “abandoned and malignant heart,” which has been construed to mean conduct exhibiting a “reckless disregard for human life,” see Bishop v. State, 257 Ga. 136, 138 (356 SE2d 503) (1987); Flynn v. State, 255 Ga. 415 (2) (c) (339 SE2d 259) (1986); Lackey v. State, supra, 246 Ga. at 337.
Although the murder convictions based on the omission of the parent to perform his or her parental duty generally have involved *518the starvation of the victim or the failure to provide medical aid,3 I see no reason why the omission-to-act theory cannot be applied to a parent who sits idly by while knowing that his or her child is being savagely beaten on a repeated basis. In many such cases, including the instant one, I believe malice may be implied from the parent’s knowledge of the beatings and the parent’s failure to take the steps necessary to protect the child.
Decided October 21, 1987. James W. Bradley, for appellant. Robert E. Keller, District Attorney, Michael J. Bowers, Attorney General, J. Michael Davis, Assistant Attorney General, for appellee.The record here contains detailed evidence that the victim received a series of beatings, including the beating causing the fatal head trauma, over a period of time during which the victim was in the custody of Hendrick and his wife. Even if Hendrick did not, himself, administer the beatings to the victim, a rational juror could have inferred from the evidence of the nature and extent of the child’s injuries, as well as from the fact that the child was in Hendrick’s custody, that Hendrick must have known of the injuries and the beatings that caused them. Moreover, under these circumstances a rational juror could have inferred that Hendrick exercised a “reckless disregard for human life” by failing to protect or aid his son.
Unfortunately, however, this theory was not pursued in the indictment of Hendrick or in the charge to the jury. Therefore, it cannot be used to uphold his conviction.
I am authorized to state that Justice Smith joins in this dissent.
I disagree with the majority’s reliance upon the results of the polygraph exam. Although we have accepted the use of the results of polygraph exams upon stipulation of the parties, we have never determined whether polygraph exams are scientifically reliable. See Harper v. State, 249 Ga. 519 (1) (292 SE2d 389) (1982); Agnor’s Ga. Evid. (2d ed.), § 10-14.
See Durden v. State, 250 Ga. 325, 329 (5) (297 SE2d 237) (1982), in which we held that “[wjhere one commits a felony upon another, such felony is to be accounted as the efficient, proximate cause of the death whenever it shall be made to appear either that the felony directly and materially contributed to the happening of a subsequent accruing immediate cause of the death, or that the injury materially accelerated the death, although proximately occasioned by a pre-existing cause.”
See, e.g., Lewis v. State, supra, 72 Ga.; Lackey v. State, supra, 246 Ga.; People v. Burden, supra, 140 Cal. Rptr.; Harrington v. State, supra, 547 SW2d; Goldsmith v. State, supra, 344 S2d.