dissenting.
I dissent only from Division 1 of the majority opinion.
The majority rely on the rule that our law requires claims as to the sufficiency of the evidence to be raised on direct appeal, not on habeas corpus. They cite three cases for that proposition. Those three cases were decided when the "any evidence” rule was in effect prior to Jackson v. Virginia, — U. S. — (99 SC 2781, 61 LE2d 560) (1979). In Jackson, the Supreme Court held that a federal habeas corpus court must consider not whether there was "any evidence” to support a state court conviction but whether there was sufficient evidence to justify a rational trier of facts to find the essential elements of the crime beyond a reasonable doubt.
Although the precise holding of Jackson fixed a constitutional standard of review in federal habeas corpus cases, the finding in that decision that due process requires that no person shall be made to suffer the onus of a criminal conviction except upon "evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense,” resulted in this court adopting that standard of review on direct appeal. Stinson v. State, 244 Ga. 219 (4) (259 SE2d 471) (1979); Driggers v. State, 244 Ga. 160, 161 (259 SE2d 133) (1979); Boyd v. State, 244 Ga. 130 (5) (259 SE2d 71) (1979); Jackson v. State, 244 Ga. 276 (1) (1979).
Jackson v. Virginia, supra, elevated claims of insufficiency of the evidence to constitutional status.
*289Our Habeas Corpus Act, Code Ann. § 50-127 (1) (Ga. L. 1967, pp. 835,836, as amended) provides that "Any person imprisoned by virtue of a sentence imposed by a State court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Georgia or the laws of the State of Georgia may institute a proceeding under this section.”
In the case before us Littles asserts that there was a substantial denial of his rights under the U. S. Constitution because he was convicted of murder on evidence which does not satisfy the Jackson v. Virginia standard. Relying on pre-Jackson cases, the majority say that sufficiency claims cannot be raised on habeas corpus. The majority do not explain why Littles can raise two confrontation claims on habeas corpus yet cannot assert a due process-sufficiency claim; i.e., cannot assert a denial of his due process rights under the Constitution of the United States as prescribed by our statute. Although it could precipitate a shower of habeas corpus cases, I would apply our habeas corpus statute and consider Littles’ sufficiency claim on its merits.
Examining the merits of this claim, it will be found that the victim was shot on August 12,1974; that she was given emergency treatment at the Greene County hospital before being transferred to the Medical College of Georgia hospital in Augusta; that after she was sent home she was seen as an out-patient on several occasions; that at this time it was expected that she would live; that she was hospitalized in November for psychosis (nervous disorder, mental confusion, etc.); that she was hospitalized again from December 15 through 23rd for bronchopneumonia and congestive heart failure; that she was released on December 23rd and returned on the 24th of December at which time attempts to revive her failed. No autopsy was performed. She was 37.
The victim’s doctor testified that in his opinion based on examination of the body without an autopsy the cause of her death was pulmonary embolus, or blood clot traveling to the lung. When asked whether the August gunshot injury and its attendant disability caused or was a factor in her death, the doctor testified that he did not *290know. He testified that pulmonary embolus could be caused by surgery or just by inactivity. He stated that pulmonary embolus could have over a hundred causes and was consistent with the injury she received because she became inactive due to the gunshot wound which left her physically paralyzed on one' side. He stated further that she developed psychosis from no known cause and that her general disposition led to a lot of inactivity and that she would not continue her physical therapy. He testified that her psychosis was consistent with her brain injuries. When asked on cross examination if he could say without doubt that the gunshot injuries caused the victim’s death, the doctor said no.
The death certificate prepared by the doctor whose testimony is summarized above showed that the cause of death was pulmonary embolus due to bronchopneumonia due to congestive heart failure. The death certificate listed the gunshot wound under "significant conditions contributing to. death but not related to the terminal disease condition given . . .” above.
When this case was here on direct appeal, Littles v. State, supra, at a time when the any evidence standard was in effect, we found that (236 Ga. at 654): "While the evidence was not overwhelming on the issue of whether Mrs. Reid’s death was caused by the gunshot wounds, there was sufficient evidence to authorize the jury to conclude that the wounds were the cause of the pulmonary embolus from which she died."
Now, in my view, the proper standard of review has changed, and after viewing the evidence in the light most favorable to the prosecution, J cannot find that a rational trier of fact could have found beyond a reasonable doubt that the defendant’s shooting of the victim in August caused her death in December. It could have caused her death, but that leaves room for reasonable doubt. Using the higher standard of review I would grant habeas corpus relief.
I would add only that the jury was not charged as to aggravated assault (this case was tried before Stonaker v. State, 236 Ga. 1 (222 SE2d 354) (1976)), and thus the verdict of guilty of murder does not show that the jury found the defendant guilty of murder as opposed to being guilty of *291aggravated assault. In fact, when the jury wavered, they were instructed to find the defendant guilty of murder or not guilty. For the foregoing reasons, I respectfully dissent.