concurring specially.
The jury in the charge discussed in Division 4 was instructed that a reckless disregard for human life “may be equivalent to” a specific intent to kill. Because I believe this charge misleads juries into believing that malice murder can be committed by criminal negligence, I disagree with the majority’s opinion that the instruction was correct.
Malice is the intent to kill without provocation or justification. Marshall v. State, 59 Ga. 154 (1877). Clearly, malice may be inferred from circumstances which demonstrate a reckless disregard for human life, House v. State, 252 Ga. 409 (3) (c) (314 SE2d 195) (1984), since malice is a state of mind which must often be proven indirectly. Davis v. State, 237 Ga. 279 (2) (227 SE2d 249) (1976).2 However, the charge given by the trial court in this case did not inform the jury that they might infer intent to kill from reckless behavior nor did it instruct them that they may consider reckless behavior as indirect proof to determine whether a defendant’s state of mind constituted malice aforethought. Rather, the challenged instruction directed the jury that reckless behavior could substitute for the intent to kill. From this charge a jury could reasonably believe that they need not find malice at all if there was evidence of criminal negligence to take *262its place. Consistent with this Court’s recent holding that it was error to charge the jury that criminal negligence can substitute for the intent to commit an aggravated assault, Dunagan v. State, 269 Ga. 590 (502 SE2d 726) (1998), I would hold that it was error here to charge the jury that reckless behavior could substitute for the intent to kill to support a murder conviction.
The majority can cite to case law extending back over 100 years, with opinion after opinion reiterating the proposition that reckless disregard of human life is the equivalent to a specific intent to kill. This court-created “equivalency” concept has its roots deep in 19th Century Georgia law and is unavoidably intertwined with the Georgia Penal Code, which was repealed in 1968. Ga. L. 1968, p. 1249, § 1. Without delving too deeply into Georgia’s tangled legal history, a topic which can be tediously arcane, it is important to understand that creation of the equivalency concept was necessary in order to provide the element of malice to uphold murder convictions for a type of homicide which required no intent to kill. Ga. L. 1833, p. 143, Penal Code § 9, p. 148. Because a person who did not have the intent to kill but who did commit a reckless act resulting in a death committed murder under this statute, and because there could be no murder without the intent to kill, the equivalency concept authorized the commission of a reckless act resulting in a death to substitute for the intent to kill essential to prove malice. See Wright v. State, 166 Ga. 1, 3 (141 SE 903) (1928). While there are cases rendered after the repeal of the Penal Code which reiterate the equivalency concept, those cases are relying upon a concept dependent on and inseparable from an abolished statute.
No statutory basis remains for maintaining a concept which equates reckless behavior with malice. Under felony murder, the modern counterpart to the repealed unintentional murder statute, the proof of malice which had been so essential to the earlier statute is now expressly irrelevant. OCGA § 16-5-1 (c) (offense occurs when, in commission of a felony, person “causes the death of another human being, irrespective of malice” (Emphasis supplied.)) There is nothing in the malice murder statute that supports the proposition that reckless behavior is the equivalent of an intent to kill: the statute defines the offense of murder in terms of malice, not criminal negligence. OCGA § 16-5-1 (a), (b). The only case law supporting this proposition is based exclusively on obsolete, discarded law. There is not even stare decisis to fall back upon: a review of the cases cited by the majority reveals that most of them rely directly or indirectly on Myrick v. State, 199 Ga. 244 (34 SE2d 36) (1945), even though Myrick was specifically named as one of the cases disapproved by this Court in Dunagan, supra, in which we held that murder cases which set forth the equivalency concept and the authority on which they rely *263“are based on a form of homicide abolished by the Legislature in 1968 and thus those holdings are inapplicable now.” Id. at 593.
The cases cited by the majority demonstrate how the appellate courts have mixed up and intermingled the equivalency concept with the correct principle that malice may be inferred from reckless behavior. See, e.g., Lackey v. State, 246 Ga. 331 (11) (271 SE2d 478) (1980) (stating both the correct principle and the equivalency concept); Flynn v. State, 255 Ga. 415 (2) (c) (339 SE2d 259) (1986) (stating the correct principle but citing as authority opinion which quotes the equivalency concept and relies upon Myrick). However, I am less concerned about confusion in the Court than with confusion in the jury room. The difference between instructing a jury that a presumption of malice may arise from reckless conduct and instructing them that reckless conduct and malice are equivalents that can substitute for one another is not just a matter of mere semantics. A jury is entitled to be instructed how to determine a defendant’s state of mind based on the evidence adduced; it is not entitled to be instructed that a lesser mental culpability may be substituted for the required higher mental culpability. A jury hearing the charge upheld by the majority in Division 4 that a reckless disregard for human life may be the equivalent of a specific intent to kill will not understand this charge to mean that they may infer malice from evidence of reckless behavior: instead, they will understand that they are authorized to substitute criminal negligence for malice.
The harm posed by jury charges which “substitute” criminal negligence for intent was recognized and correctly condemned by this Court in Dunagan. That harm is present in this malice murder case. Given the misinformation the charge in issue here provides to jurors and the seriousness of the penalty involved for a murder conviction, it behooves this Court to condemn a charge which instructs a jury that it can substitute criminal negligence for the malice required to convict under OCGA § 16-5-1 (a). Accordingly, I would conclude that the trial court in this case erred by charging the jury that reckless behavior may be the equivalent of an intent to kill. However, in light of the charge as a whole and considering that the evidence adduced by the State, albeit circumstantial, was overwhelming, I would find there is no reasonable possibility that the jury could have returned a different verdict had the challenged charge not been given. Roberts v. State, 267 Ga. 669 (10) (d) (482 SE2d 245) (1997). See also Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). Thus, I concur in judgment only.
I am authorized to state that Presiding Justice Fletcher and Justice Sears join in this special concurrence.
*264Decided November 23, 1998. Lee Sexton & Associates, Lee Sexton, for appellant. Robert E. Keller, District Attorney, Verda Andrews-Stroud, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.Thus, I agree completely with the language the majority cites from Professors LaFave and Scott that extremely negligent conduct may constitute malice murder since that language is consonant with the above-cited Georgia law.