dissenting.
A life has been taken. When such a loss has resulted from a criminal act, society is justifiably outraged, and when the death involves one of tender years, society’s outrage is magnified. In affirming the conviction of a defendant charged with a death-producing act, this court reaffirms society’s outrage. However, our obligation as a court goes beyond merely expressing outrage. Our duty also imposes upon us an obligation to assure that the substantive rules of law and of criminal procedure are observed. It is in pursuit of that duty that I must respectfully dissent to the majority opinion.
In the first appellate appearance of this case (Wade v. State, 258 Ga. 324 (368 SE2d 482) (1988)), appellant stood convicted of felony murder with the underlying felony being aggravated assault. We reversed as to the sentence because of an improper charge to the jury. On the second trial, appellant was again sentenced to death, with the aggravating circumstance this time being aggravated battery under OCGA § 17-10-30 (b) (2), which permits the death penalty to be imposed when “[t]he offense of murder . . . was committed while the offender was engaged in the commission of . . . aggravated battery.”
OCGA § 16-5-24 (a) provides as follows:
*112A person commits the offense of aggravated battery when he maliciously causes bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof.
The main opinion decides the evidence is sufficient to show the commission of aggravated battery; therefore, the death sentence was authorized. A careful review of the record shows the jury was authorized to find that the victim had been struck several times in the head with some type of instrument which caused a laceration 2 Vz inches in length and Vs to Vi inch in width. This laceration was not clearly visible because it was covered by the victim’s hair, and it was only discovered when the victim was being prepared for autopsy. There was also evidence of a blow to the face which produced swelling and discoloration around the eyes. All of these injuries preceded the strangulation of the victim.
The statute covering aggravated battery makes it abundantly clear that in order for the offense to be committed, there must have been (1) deprivation of a member, or (2) the rendering of a member useless, or (3) disfigurement. Neither the laceration nor the discoloration and swelling around the victim’s eyes rose to the level of harm to which the aggravated battery statute referred.
Admittedly, criminal conduct, no matter what form it takes, is odious to society and all law-abiding citizens are offended by its presence. Nevertheless, the death penalty is a punishment that historically has been reserved for the most egregious of criminal offenses. It is so ordained because nothing is more precious than life, and out of an abundance of caution the state authorizes the taking of life by execution only for the commission of specifically heinous offenses, and then only after all the time-honored rules of law and statutory construction have been applied.
The first rule of law to be applied here is that criminal laws must be strictly construed in favor of the accused. Holland v. State, 34 Ga. 455 (1866). Another pertinent rule is set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), which requires appellate courts to determine whether the evidence is sufficient to allow the factfinder to determine the defendant’s guilt beyond a reasonable doubt. Before we can place our imprimatur on the death penalty in this case, we must determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of committing the separate offense of aggravated battery before the death occurred. Burger v. State, 245 Ga. 458 (4) (265 SE2d 796) (1980), cert. denied, 446 U. S. 988 (100 SC 2975, 64 LE2d 847) (1980).
The main opinion finds the evidence in this case sufficient to es*113tablish the aggravating circumstance that the murder was committed while appellant was committing aggravated battery. However, a review of aggravated battery cases renders a different portrait. In cases where we have affirmed a conviction for aggravated battery, the evidence has shown deprivation of a member,5 loss of use of a member,6 and serious disfigurement.7
Our present aggravated battery statute had its origin in the common law crime of mayhem.
The 1968 Criminal Code, of which Code § 26-1305 [OCGA § 16-5-24 (a)] is a part, created the crime of aggravated battery in lieu of the older crimes of mayhem. . . . [Mitchell v. State, 238 Ga. 167 (231 SE2d 773) (1977).]
Where the inhibition is directed against an injury which disfigures, it is not necessary that the whole member should be mutilated or detached if the injury impairs comeliness. However, the cutting or biting off of a small portion of the member which does not disfigure the person, and could only be discovered by close inspection, or examination, when attention is directed to it, will not constitute mayhem under some statutes; nor, it has been held, does the biting off of a portion of a member necessarily show that the injured person was deprived of the use of such member. Under some statutes a mere disfigurement of the organ referred to is not sufficient unless such disfigurement results in rendering the organ useless. The injury is ordinarily sufficient to bring the case within the statute where it is such to deprive the injured person of the organ for the ordinary and usual practical pur*114poses of life. [57 CJS 461, Mayhem, § 3 (c) (3).]
Aggravated battery statutes, having had their origin in the common law crime of mayhem, should be construed in light of the common law. 53 AmJur2d 487, Mayhem, § 1.
Under the early common law, if an injury merely disfigured a person without diminishing his corporal abilities, it did not constitute the crime of mayhem. Moreover, whatever the injury to any member of the body might be, if it did not permanently affect the physical ability of the person to defend himself or annoy his adversary, it did not amount to mayhem. . . . The military or combative importance of the organ or member injured or destroyed, to which the old common law had special regard, is, however, of no significance whatever as a constituent of mayhem under most statutes. Whether capacity for attack or defense has been lessened by the maiming is utterly irrelevant and immaterial. The statute looks not to the fighting, to giving or shunning blows, but to maintaining the integrity of the person, the natural completeness and comeliness of the human members and organs, and to preserving their functions. [Emphasis supplied.] [Id. § 3.]
The factual issue of “serious disfigurement” is a matter for jury determination (Miller v. State, 155 Ga. App. 54 (270 SE2d 466) (1980)); however, there must be sufficient evidence upon which a jury can make its determination. In determining the sufficiency of the evidence, we should require no more than is provided for under the statute. On the other hand, we should require no less than the statute dictates. And in doing so, we should be careful not to allow the statute relating to aggravating circumstances to be interpreted too loosely.
The injuries to the victim in this case on which the State relies to show aggravated battery consisted of a laceration which was hidden by the victim’s hair and was not visible without moving the hair, head injuries and facial bruising, and ligature marks on the victim’s neck. Conspicuously absent from the evidence is any testimony that the injuries would have deprived the victim of any member of his body or the use of any member of his body, or that the victim would have been seriously disfigured by the injuries. Taking into consideration the common law origin of the offense of aggravated battery and the cases decided under our aggravated battery statute, and considering the evidence in the light most favorable to the verdict, I find the evidence to be insufficient to prove aggravated battery as an aggravating *115circumstance authorizing the imposition of the death penalty. Therefore, I would vacate the death sentence and remand this case to the trial court for imposition of a life sentence.
Decided March 15, 1991 — Reconsideration denied March 27, 1991. Strauss & Walker, John T. Strauss, for appellant. John W. Ott, District Attorney, J. Ellis Millsaps, Assistant District Attorney, Michael J. Bowers, Attorney General, Andrew S. Ree, for appellee.Deprivation of a member:
Mitchell v. State, 238 Ga. 167, supra, loss of an eye; McCulligh v. State, 169 Ga. App. 717 (314 SE2d 724) (1984), loss of an eye; Drayton v. State, 167 Ga. App. 477 (306 SE2d 731) (1983), loss of an ear; Jarrard v. State, 152 Ga. App. 553 (263 SE2d 444) (1979), loss of spleen; Howard v. State, 173 Ga. App. 585 (327 SE2d 554) (1985), loss of leg; Harris v. State, 188 Ga. App. 795 (374 SE2d 565) (1988), loss of sight.
Loss of use of a member: Ingram v. State, 170 Ga. App. 200 (316 SE2d 825) (1984), victim remained in coma with loss of use of right arm and leg and poor eyesight and memory; Griffin v. State, 170 Ga. App. 287 (316 SE2d 797) (1984), victim remained in coma with 75 percent of brain destroyed; Jackson v. State, 142 Ga. App. 565 (236 SE2d 549) (1977), victim rendered paraplegic by gunshot wound to spine; Baker v. State, 245 Ga. 657 (266 SE2d 477) (1980), fractured jawbone, which had to be wired to immobilize it, with serious temporary disfigurement and loss of use of jaw until it healed.
Serious disfigurement: Veasley v. State, 142 Ga. App. 863 (237 SE2d 464) (1977), gunshot wound to face; Ewing v. State, 169 Ga. App. 680 (314 SE2d 695) (1984), potash thrown in face and eyes requiring skin graft; Price v. State, 160 Ga. App. 245 (286 SE2d 744) (1981), boiling water thrown on victim causing severe injuries requiring several weeks of hospitalization, plastic surgery and permanent scarring.