dissenting.
Because I cannot agree that the evidence adduced at trial was sufficient to authorize appellant’s conviction of felony murder, I must dissent.
“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Although there is in the record of this case sufficient evidence to authorize a finding that appellant fired the shot that killed the victim, proof that appellant fired the fatal shot is not sufficient to support his conviction of felony murder. The underlying felony being aggravated assault, it was necessary that the *806evidence establish the elements of the offense of aggravated assault. Woods v. State, 233 Ga. 495, 501 (212 SE2d 322) (1975).
One of the elements of aggravated assault is intent to injure. Riddle v. State, 145 Ga. App. 328 (1) (243 SE2d 607) (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 (6) (282 SE2d 305) (1981). The record of this case is totally devoid of any evidence from which it could be inferred that appellant fired his shotgun with any intent to injure the victim. In fact, from the evidence that the fatal shot was fired from a position screened by brush from the victim’s position, and evidence that the victim’s wife, from only 20 yards away, heard no voices, just movement, the hypothesis that appellant shot at the motion of an unidentified target is even more reasonable than the State’s hypothesis that the victim discovered appellant poaching and confronted him. While the evidence certainly would support a finding that appellant, by hunting out of season on property where he had no permission to hunt, was engaged in criminal conduct, it does not support a finding that appellant intended to harm a human being; it does not, therefore, support a finding of guilty of aggravated assault; and it does not, therefore, support appellant’s conviction of felony murder.
Legislative action subsequent to the events involved here would permit indictment for and conviction of felony murder based on the circumstantial evidence adduced at appellant’s trial.
Any person who while hunting uses a firearm ... in a manner to endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm to or endanger the safety of another person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor; provided, however, if such conduct results in serious bodily harm to another person, the person engaging in such conduct shall be guilty of a felony. . . . [OCGA § 16-11-108 (a) (Ga. L. 1989, p. 292, § 1, effective March 30, 1989.)]
Under the evidence in this case, a jury would be authorized to find that appellant was “shooting at motion” rather than at a clearly visible target, that he was hunting deer with a shotgun at a time when he knew it was illegal for him to be hunting as he was, that bow hunters might be in the woods, and that he was hunting on private property without permission. Under those facts, an indictment for felony murder with a violation of § 16-11-108 as the underlying felony would clearly lie, and a conviction would be authorized. However, § 16-11-108 was not in effect when the victim was killed and appellant’s conduct, though illegal and reprehensible, was not shown by the evidence *807at trial to constitute the offense of felony murder. For that reason, I must dissent to the affirmance of his conviction.
Decided February 7, 1990. Clyde M. Urquhart, for appellant. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, Michael J. Bowers, Attorney General, William B. Hill, Jr., Deputy Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Leonora Grant, for appellee.I am authorized to state that Justice Bell joins in this dissent.