dissenting.
I dissent.
As I understand the majority opinion, it rests principally upon the case of Stromberg v. California, 283 U. S. 359 (51 SC 532, 75 LE 1117) (1931). Stromberg, carefully examined, need not control this case. Fifty-five years ago, the U. S. Supreme Court struck down as unconstitutional a California statute because it violated the First Amendment. The statute made it a crime to “display a red flag . . . banner or device ... in any public place . . . as a sign ... of opposition to organized government.” The same section of the penal code also made illegal any invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character. The United States Supreme Court found the first portion wanting, and because the verdict of guilty did not specify the ground upon which it rested, the court held that “it is impossible to say under which clause of the statute the conviction was obtained.” 283 U. S. at 368. The court vacated the conviction, observing: “It may be added that this is far from being a merely academic proposition, as it appears, upon an examination of the original record filed with this Court, that the State’s attorney upon the trial emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to other clauses. It follows that instead of being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.” (Emphasis supplied.) Id. 368.
It should be noted that the foundation for the court’s reversal comes “from the manner in which the case was sent to the jury.” Compare the manner in which this case was sent to the jury, which I now discuss.
1. In contrast to the prosecutor’s argument in Stromberg, the district attorney in this case — in an argument consuming 45 pages of transcript — not once mentioned the offense of child molestation. His sole address to the question of felony murder was as follows: “He will likewise charge you, I am sure, concerning felony murder, in that it is an included offense of malice aforethought, and that is, that if you find this defendant, while doing a felony of some type, while not intending to actually kill someone, but just doing a felony, another commission of another criminal act, he kills that person, he likewise is guilty of the offense of murder.” Importantly, the district attorney then proceeded directly to discuss, not sexual offenses, but choking and malice. “Try to choke someone with the purpose of shutting their mouth so they can’t scream, and applying pressure, and knowing that *443you are applying pressure to stop those screams, malice aforethought, I submit to you, ladies and gentlemen.”
2. Another critical contrast in the manner in which this case was submitted to the jury is found in the charge of the trial court. A review of the attached excerpts1from the guilt-innocence phase charge will disclose that in no less than 12 instances the trial judge used the terms “crime charged in the indictment,” “crime charged,” “allegations of the crime charged” — and the like. (The crime alleged in the indictment was, of course, malice murder.)
More particularly, Items 6 and 7, reflect the court’s charge on the form of the verdict. The court instructed the jury that if it found the defendant guilty of “the offense of murder as that is set out and alleged in this bill of indictment and as I have defined it to you, the form of the verdict would be ‘We, the jury, find the defendant guilty.’ ” The verdict of the jury was “We, the jury, find the defendant guilty.”
The charge must be considered as a whole. And it must be viewed as from the jury box. “The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather *444what a reasonable juror could have understood the charge as meaning.” Francis v. Franklin, _ U. S. _ (slip opinion No. 83-1590, decided April 29, 1985), at p. 8.
Decided May 31, 1985 — Rehearing denied June 18, 1985. Johnny B. Mostiler, Tamara Jacobs, for appellant. Johnny L. Caldwell, Jr., District Attorney, J. David Fowler, Christopher C. Edwards, Assistant District Attorneys, Michael J. Bowers, Attorney General, Eddie Snelling, Jr., Senior Attorney, for appellee.So considered, this verdict can mean only guilty of murder as charged in the bill of indictment. There is no ambiguity.
3. This case is further distinguished from Stromberg by the nature of the evidence itself. Consider the facts. Crawford told the victim’s mother, just before the murder, “G— d-it, I’ll get you.” He was seen in the victim’s bedroom at 3:00 a.m. At 5:00 a.m., it was discovered that the victim was missing. Shortly thereafter, Crawford was seen in the neighborhood, and when asked if he knew where the child was, replied “Randy [the victim’s father] done it.” Crawford gave three inconsistent statements about where he was, but acknowledged being with the victim at the critical time, and carrying the victim in his arms. The victim was found in a wooded area. She died from asphyxiation. There was evidence of sexual assault.
I suggest that it is fanciful to ascribe to any jury hearing this evidence a finding that this defendant, with no intent to kill the victim, inadvertently caused her death (by strangulation) in the course of child molestation. Fine-spun legal theory aside, that is simply beyond the realm of reason.
We ought not to suffer our judicial system to become one in which theory alone reigns, and where guilt is irrelevant.
1.1 charge you that intent to commit the crime charged in this indictment is an essential element that the State must prove beyond a reasonable doubt.
2. That the legal presumption of the innocence of this Defendant of the crime charged against him in the Indictment . . . and unless the evidence introduced here in Court, satisfies and convinces your minds and consciences to a moral and reasonable certainty and beyond a reasonable doubt that the accused is guilty of the crime of which he is charged in the Indictment, and each and every element thereof, and if your minds are not thus satisfied and convinced, then it would be your duty to acquit the defendant.
3. I charge you that the degree of conviction that is required as to the elements of the crime charged in the Indictment ....
4. The burden is on the State to prove beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis each and every material allegation as set out in this Bill of Indictment, including each element of the crime charged, and a failure to prove any of the essentials, would require an acquittal. Among the material allegations which must be so proven is that this defendant did commit in Spalding County, Georgia, the crime of Murder as that is set out in this Bill of Indictment, and as I will hereinafter define it to you, all of the allegations of the Indictment being material allegations with the exception of the date upon which the offense is alleged to have been committed. . . .
5. This Defendant has entered a plea of not guilty to the Indictment and to the crime charged therein. By this plea of not guilty, the Defendant has denied each and every element and allegation set forth in the Indictment, and as I have stated, the burden is upon the state to prove beyond a reasonable doubt all of the material elements and allegations of the crime charged in order for you to find this Defendant guilty.
6. If upon your consideration of this case you find and believe to the exclusion of every other reasonable hypothesis that this Defendant did commit the offense of murder as that is set out and alleged in this Bill of Indictment and as I have defined it to you, then you would be authorized to find the Defendant guilty. In such case, the form of your verdict would be: “We, the Jury, find the Defendant guilty.”
7. If you are not satisfied that the Defendant is guilty as charged, or if you entertain a reasonable doubt as to his guilt, then . . . the form of your verdict would be: “We, the Jury, find the Defendant not guilty.” (Emphasis supplied, as to all paragraphs.)