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Murder Defense

Murder, the most serious of all crimes. Murder - one of the seven deadly sins in Georgia - is the only crime for which you may be put to death in Georgia. In this state the government sanctions killing of its own citizens for one crime and one crime alone and that is murder. With that said, death by lethal injection sentences are becoming more and more rare, however, life without parole sentences, or death in prison sentences, are still commonplace for murder convictions.

With that said, murder comes in three different shapes and sizes in Georgia. There is 1) Malice Murder; 2) Felony Murder; and 3) Murder in the 2nd Degree.  We will go through each of them individually. 

Malice Murder

The Law - O.C.G.A § 16-5-1(a)

A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

The Two Kinds of Malice - O.C.G.A § 16-5-1(b)

1. Express

Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof.

2. Implied. 

Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

Example I

Malice murder is considered the most serious of the murder charges. An example of malice murder would be a scenario commonly called "premeditated murder." A situation where someone systematically plans the murder of another and then carries out that plan. For instance, if a wife suspects her husband to be cheating on her. So, she develops an elaborate plan to kill him. She orders a poison online, laces his food, and kills him. When charged this woman would likely face a malice murder charge. 

Example II

Two friends, Jack and Jim, are eating dinner. They decide to break into a home and take some jewelry to pawn so they'll have some money to buy Christmas presents. They carry out their plan, however, while inside of the home the owner comes in the front door. Jack, scared and unsure what to do, pulls a firearm and shoots the unsuspecting homeowner. When charged Jack would likely face a malice murder charge. 

Felony Murder

The Law - O.C.G.A. § 16-5-1(c)

A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.

Example of Felony Murder

For an example of felony murder let's return to the plight of Jack and Jim from above. This time Jack and Jim are at home and they are low on cash. So, they decide to "hit a lick" on the local corner store. They don't want to hurt anyone, they are just going to show the clerk their gun to scare her, demand the money from the drawer, and get out of there quickly. 

Their plan, however, takes a turn for the worst. The clerk tells them no - she won't turn the money over. So, still not wanting to seriously hurt anyone, or for that matter kill anyone, Jim decided to strike the clerk with the firearm - hoping to gain her compliance. When he struck her with the firearm, however, she fell and hit her head and died. 

By no means was Jim trying to kill the clerk and he in no way intentionally killed her. He nonetheless will likely be charged with felony murder under Georgia law because during the commission of committing an armed robbery he caused the death of the store clerk.

Punishment for Malice Murder & Felony Murder

There are only three sentencing options for someone convicted of malice murder. 

1. Life without Parole - a person sentenced to life without parole will serve the remainder of their time on earth in the state penitentiary with no possibility of ever being released, assuming their conviction stands. 

2. Life with Parole - a person sentenced to life with parole is sentenced to serve the remainder of their life in prison as well. With this sentence, however, the person becomes eligible for parole after serving thirty years of their sentence. 

3. The Death Penalty - The state of Georgia sanctions killing its own citizens when they are convicted of committing malice murder. 

Murder in the Second Degree - O.C.G.A § 16-5-1(d)

A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.

So, to commit murder in the second degree, you must first commit cruelty to children in the second degree. Cruelty to children in the second degree occurs when any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.

This law is only a few years law and defense attorney's are still preparing for how prosecutors plan to utilize this law that the legislature has given them. Listed below are a couple of scenarios that we may see moving forward. 


1. A child is left alone for several hours with no supervision and for some reason the child dies. 

2. A three year old child is left under the supervision of a seven year old child and the three year old dies. That could be charged as second degree murder. 

Punishment for Murder in the Second Degree

Murder in the second degree is punishable by anywhere between ten (10) years and thirty (30) years. Any part of which may be probated and this charge is also available for sentencing under Georgia's first offender law. 

Felony Murder v. Murder in Second Degree

There is one tricky part about all of this. For murder in the second, you must have committed cruelty to children in the second. Cruelty to children in the second degree is a felony. So, as you will remember, that means if a death results from cruelty in second, then the suspect may also be charged with felony murder. 

This is an example of how much power a prosecutor has. The difference in sentencing options a judge has between felony murder and murder in the second are HUGE. The prosecutor gets to set the tone from the very beginning on whether to present felony murder charges or murder in the second degree charges to the grand jury (what is a grand jury by the way?). 

Check out this article from the Newnan Times-Herald about the second degree murder law and to see some quotes form the executive director of the Prosecuting Attorney's Council Director, Pete Skandalakis.

Contact Us

You do not need to be reminded that murder is a serious charge. Don't hesitate, contact us today, get Ryan in your corner, and do not fight these charges alone. (470) 635-1725