dissenting.
Because I conclude that circumstances surrounding Hines’s commission of the status felony of possessing a firearm were not inherently dangerous within the meaning of our decision in Ford v. State,24 I dissent to the majority’s affirmance of Hines’s conviction of felony murder.
In Ford, this Court held that for a felony to serve as the basis for a felony murder conviction, it had to be inherently dangerous by its very nature or had to be committed under circumstances creating a foreseeable risk of death.25 We also held that the imputation of malice that justifies the felony murder rule is dependent on the “perpetrator’s life-threatening state of mind accompanying [the] commission [of the underlying felony].”26 In Ford, however, we did not specify how to determine whether a particular felony, either by its nature or as it was committed, was inherently dangerous to human life. Because of the severe punishments that accompany a conviction of murder27 and because it is illogical to impute malice for purposes of felony murder “ ‘ “from the intent to commit a felony not [foreseeably] dangerous to human life,” ’ ”28 I conclude that for purposes of our felony-murder doctrine, a felony is inherently dangerous per se or as committed if it carries “ ‘a high probability’ that [a human] death will result.”29 This *497standard will ensure that our felony murder rule is not inappropriately expanded by “reducing the seriousness of the act which a defendant must commit in order to be charged with murder.”30
In the present case, I conclude that the possession of a firearm by Hines was not committed in a fashion that was inherently dangerous and that carried a high probability that death would result. The fact that Hines was hunting, a dangerous sport; the fact that he had been drinking before he went hunting; the fact that he was hunting at dusk; and the fact that he fired a shot when he knew other hunters were in the general area in which he was hunting may establish that Hines was negligent, but do not establish that his acts created a high probability that death to a human being would result, or that he had a “life-threatening state of mind.”31 Moreover, as for the fatal shot, Hines testified that he heard a turkey gobble, that he “saw it fan out,” and that he then fired at the object. Even though Hines may not, as stated by the majority, have positively identified his target as a turkey, he had to make a split-second decision regarding his target and concluded, based on hearing a gobble and seeing something “fan out,” that the object was a turkey. I cannot conclude that, under these circumstances, the failure of the hunter to identity his target beyond doubt carried a high probability that a human being would be killed or that he acted with a “life-threatening state of mind.”32
The death in this case is clearly a tragic incident, and Hines’s conduct before and after the shooting was reprehensible. But the sanction of life in prison for murder should be reserved for cases in which the defendant’s moral failings warrant such punishment. Here, the application of the felony murder statute to Hines’s actions punishes him more severely than his culpability merits. In this regard, Hines will be serving the same punishment — life in prison — as an arsonist convicted of felony murder who firebombed an apartment that he knew was occupied, causing the death of two young children,33 and the same punishment as an armed robber convicted of felony murder who entered a store with a firearm and shot and killed a store employee.34 This result is unwarranted and unnecessary, as Hines could be prosecuted and convicted of an appropriate *498lesser crime, such as involuntary manslaughter35 or the misuse of a firearm while hunting.36
Decided March 27, 2003 Reconsideration denied April 11, 2003. Larry B. Hill, for appellant. Herbert E. Franklin, Jr., District Attorney, Thurbert E. Baker, Attorney General, Jill M. Zubler, Assistant Attorney General, for appellee.One final note. Hunting is a time-honored recreational activity encouraged by the State of Georgia and enjoyed by many of our State’s citizens. No doubt a number of hunters have probably engaged in negligent hunting practices similar to those in this case. Although I do not condone such careless practices, neither can I agree with subjecting so many hunters to the possibility of spending life in prison when they do not fastidiously follow proper hunting procedures and accidentally shoot a fellow hunter.
For the foregoing reasons, I dissent to the majority opinion.
262 Ga. 602 (423 SE2d 255) (1992).
Id. at 603. Accord Hulme v. State, 273 Ga. 676, 678 (544 SE2d 138) (2001).
Ford, 262 Ga. at 603.
See Model Penal Code and Commentaries, Pt. II, § 210.2, p. 36 (Official Draft and Revised Comments 1980).
Ford, 262 Ga. at 603, quoting State v. Goodseal, 553 P2d 279, 285 (Kan. 1976).
People v. Patterson, 778 P2d 549, 558 (Cal. 1989). Accord People v. Hansen, 885 P2d 1022, 1026 (Cal. 1994).
Patterson, 778 P2d at 558.
Ford, 262 Ga. at 603.
Id. See also Cable v. Commonwealth, 415 SE2d 218 (Va. 1992) (under circumstances similar to present case, defendant was convicted of involuntary manslaughter; his conviction was affirmed on appeal, but the dissent, taking the position that no crime had been committed, noted that the Supreme Court of Virginia had only decided one other case (also an involuntary manslaughter case) dealing with hunting accidents).
Wolfe v. State, 273 Ga. 670 (544 SE2d 148) (2001).
Taylor v. State, 275 Ga. 461 (569 SE2d 520) (2002).
OCGA § 16-5-3.
OCGA § 16-11-108. Hines was in fact convicted of this crime in the present case.