dissenting.
The outcome of this case hinged on whether the jury believed it could consider accident as a defense to felony murder. Inasmuch as the jury was directed by the trial court it could not consider the defense of accident when deciding whether Tessmer was guilty of felony murder, I must dissent. The evidence overwhelmingly demonstrates that Tessmer and Newton were involved in an emotionally, physically and sexually abusive relationship caused in large part by Newton’s alcoholism. In the course of their abbreviated four month marriage, Newton, who drank heavily, was arrested three times for driving under the influence, appeared late for his court date where he then registered a .29 on the alco-sensor test, was held in contempt of court and incarcerated for more than twenty days. Newton exhib*227ited controlling and erratic behavior during the marriage. He made numerous calls to Tessmer’s place of employment to check on her and monitored her phone calls. There were constant demands for sexual intercourse and continual disregard of Tessmer’s refusals of sex. By January 1998, the physical abuse escalated to the point that Tessmer left for a short time.
In the days before his death, Newton remained extremely intoxicated, combatant, and incoherent. As their home was burning to the ground, Newton argued with firefighters, demanding that they go into the burning home to retrieve his alcohol. He punched a hole in the wall of the apartment they moved into after the fire. During an argument the night before the shooting, Newton hit Tessmer, pushed her against a night stand, bloodied her nose and wrenched her elbow. The following day, when Tessmer refused to have sex with Newton, he raped her. After the rape, he continued the abuse by forcing her already injured elbow behind her back, bending her fingers until they were almost broken, and wrapped his legs around her midsection in a wrestling hold until she could barely breathe. At the end of the assault, Tessmer lay on the floor afraid. She admits that she thereafter pulled out the gun which she had hidden away from Newton and held it cradled in her hand in order to scare Newton and prevent him from coming at her again.8 In numerous statements to police, Tessmer stated Newton then diverted her attention, reached for the gun, and during the struggle pushed her hand against the trigger causing it to fire.
Based on this evidence of record, the trial court charged the jury on the indictment, defined malice murder, felony murder, and aggravated assault, and instructed the jury on the defenses of accident and justification. The court then instructed the jury that accident is not a defense to the offense of felony murder and could not be considered by the jury in deciding the guilt of the defendant as to the felony murder count of the indictment. Under the law of this State, however, accident can be a defense to felony murder and I believe the trial court erred in instructing the jury otherwise.
Under Georgia law, a person commits malice murder when he acts with the unlawful intention to kill without justification or mitigation. OCGA § 16-5-1 (a) and (b). A person commits the crime of felony murder “when, in the commission of a felony, he causes the death of another human being irrespective of malice.” OCGA § 16-5-1 (c). While I agree with the majority that proof of felony murder does not *228require proving malice or the intent to kill, Maj. Op. at 222, felony-murder does require “that the defendant possess the requisite criminal intent to commit the underlying felony.” Holliman v. State, 257 Ga. 209, 210 (1) (356 SE2d 886) (1987). See Lattimore v. State, 265 Ga. 102 (3) (454 SE2d 474) (1995). Accord Edge v. State, 261 Ga. 865-866 (2) (414 SE2d 463) (1992) (felony murder depends on transfer or imputation of malice from mens rea of felony to the killing). By definition, then, a defendant found guilty of felony murder based on the underlying felony of aggravated assault must be found to possess the requisite intent to commit aggravated assault. The trial court in this case instructed the jury that accident is not a defense to the crime of felony murder, thereby impermissibly relieving the State of its burden of proving the requisite intent for the underlying felony.
Decided November 30, 2000 Reconsideration denied December 14, 2000. Katz, Flatau, Popson & Boyer, Sandra J. Popson, for appellant. Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.There is no question that accident is a valid defense to the intent required to prove aggravated assault and, must, therefore, also be a valid defense to the imputed intent required to prove felony murder. See Martin v. State, 268 Ga. 682 (6) (492 SE2d 225) (1997); Rameau v. State, 267 Ga. 261 (1) (477 SE2d 118) (1996) (jury properly instructed on defense of accident to charges of aggravated assault). Because the facts of this case support the defense of accident and the trial court’s instruction removed the defense from the jury’s consideration as to the felony murder count, I dissent to the majority opinion.
I am authorized to state that Chief Justice Benham and Presiding Justice Fletcher join in this dissent.
Contrary to the majority opinion, there is absolutely no evidence in the record that Tessmer pointed the gun at Newton. In each of her statements to police and throughout her testimony at trial, Tessmer described in detail how she held the gun flat in her hand with the gun barrel pointed away from Newton at a 90 degree angle.