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Docket Number

S01A1028.

Attorney(S)

T. Joseph Campbell, District Attorney, for appellant. Vaughan Evans, Donald C. Evans, Jr., for appellee. Kenneth B. Hodges III, District Attorney, Joseph F. Burford, amici curiae.

Judges

CARLEY, Justice.

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Smart Summary

Case Summary: THE STATE v. JONES, S01A1028 (Supreme Court of Georgia, Oct. 1, 2001)

Factual and Procedural Background

The grand jury returned an indictment charging Anita Newberry Jones and two co-defendants with one count of malice murder, two counts of felony murder, and one count each of conspiracy to commit robbery, aggravated battery, and concealing the death of another. The felony murder counts incorporated the conspiracy and aggravated battery counts, respectively, as the underlying felonies. The alleged crimes occurred 14 years before the indictment was returned. Jones filed a demurrer and a plea in bar asserting that the statute of limitations had expired for the non-murder felonies and that the State had failed to allege any statutory exception. The trial court sustained the demurrer and plea in bar as to every count except malice murder, reasoning that the statute of limitations had expired for the underlying felonies and that felony murder convictions depend upon successful prosecution of the underlying felony. The State appealed pursuant to OCGA § 5-7-1(a)(1,3).

Legal Issues Presented

Whether the expiration of the statute of limitations for the underlying felonies precludes prosecution on the felony murder counts.
Whether the felony murder counts are defective because they incorporate by reference underlying felony counts that must be stricken as time-barred.
Whether the non-murder counts (the underlying felonies and concealing the death of another) are barred by the statute of limitations when charged as separate counts in the indictment.

Arguments of the Parties

Appellant's (State) Arguments

The trial court erred in sustaining the demurrer and plea in bar as to the felony murder counts because there is no statute of limitations for murder under OCGA § 17-3-1(a), which thus applies to felony murder as well as malice murder.
Under the felony-murder statutory scheme, the underlying felony need not be separately charged and convicted for a felony murder conviction; the jury must only find that the defendant committed or attempted to commit the underlying felony.
Regarding non-murder counts, the State invoked principles that a lesser included offense for which the limitations period has expired may be convicted when charged only as a lesser included offense under an indictment for a greater offense that is not time-barred, but recognized that the cited authorities addressed indictments that charged only the greater offense.

Appellee's (Jones) Arguments

Jones argued that the felony murder counts are defective because they are incomplete and impermissibly incorporate by reference other counts which themselves must be stricken as time-barred.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wooten v. State, 262 Ga. 876, 880 (3) (426 S.E.2d 852) (1993)	No statute of limitations for the offense of murder; "A prosecution for murder may be commenced at any time." (OCGA § 17-3-1(a))	Used to support the proposition that murder is not time-barred and that this rule applies to felony murder as a form of murder.
Lumpkins v. State, 264 Ga. 255 (1) (443 S.E.2d 619) (1994)	Murder may be committed either with malice aforethought or while in the commission of a felony; counts alleging different manners refer to the same crime.	Equated "murder" generally with both malice and felony murder for application of OCGA § 17-3-1(a).
State v. Dennison, 801 P.2d 193, 202 (Wash. 1990)	Running of statute of limitations on the underlying felony is irrelevant to a prosecution for felony murder.	Presented as an example of jurisdictions holding that limitations on underlying felonies do not bar felony murder prosecutions.
State v. Lacy, 929 P.2d 1288, 1298 (Ariz. 1996)	Statute or felony-murder wording does not require that defendant be charged and convicted of the underlying felony; imposing a time limit on felony murder contravenes legislative intent.	Relied on to show other jurisdictions' reasoning and to support the conclusion that underlying felony time bars do not defeat a felony murder prosecution.
Sochor v. State, 619 So.2d 285, 290-291 (Fla. 1993)	Statute of limitations on underlying felony is irrelevant to felony murder when homicide limitations are excluded.	Used as supporting authority for the court's conclusion.
Jackson v. State, 513 So.2d 1093, 1095 (Fla.App. 1987)	"The mere preclusion of the state's capacity to prosecute the subordinate crime because of a time limitation has no effect upon the question of whether such crime was committed."	Quoted to reject the trial court's reasoning that inability to prosecute the underlying felony prevents prosecution for felony murder.
State v. White, 477 N.W.2d 24, 26 (Neb. 1991)	Wording of felony-murder statutes does not require the underlying felony to be separately charged and convicted.	Supported the court's view that the underlying felony need not be separately prosecuted to sustain a felony murder charge.
Commonwealth v. Munchinski, 585 A.2d 471, 482-483 (Pa.Super. 1990)	Absence of limitations for homicide supports prosecuting felony murder despite limitations on related felonies; underlying felony need not be separately charged.	Used as authority for the proposition that limitations on the underlying felony do not bar the felony murder charge.
People v. Morris, 756 P.2d 843, 850 (Cal. 1988)	Underlying felony need not be charged as a separate substantive offense; the crime of murder is independent of the underlying felony.	Supported the conclusion that felony murder is independent and not defeated by a time-barred underlying felony.
People v. Harvin, 259 N.Y.S.2d 883, 885-886 (Sup.Ct. 1965)	Felony murder charge may not be separated into components such that statute of limitations on an element defeats the major felony murder charge.	Quoted to reinforce that a time-bar on an underlying element does not nullify a felony murder prosecution.
Staples v. State, 199 Ga. App. 551, 552, fn.1 (405 S.E.2d 551) (1991)	One count may incorporate by reference portions of another; an indictment is read as a whole; form requirement applies to offense rather than form.	Applied to uphold that the felony murder counts could incorporate the underlying felony counts despite defects in the underlying counts.
Durden v. State, 29 Ga. App. 548, 551 (116 S.E. 41) (1922)	When one count is stricken on demurrer, the bad count is not thereby expunged from the face of the indictment or rendered inoperative as an exhibit aiding a remaining count.	Used to justify that stricken underlying felony counts nevertheless remain in the indictment for purposes of incorporation into felony murder counts.
Latham v. State, 100 Ga. App. 509 (1) (112 S.E.2d 163) (1959)	Support for the proposition that a stricken count can still operate as an exhibit for remaining counts.	Reinforced the Durden principle applied by the court.
Jinks v. State, 114 Ga. 430, 431 (1) (40 S.E. 320) (1901)	Statute of limitations applicable in a criminal case is that which relates to the offense charged in the indictment, not to any minor offense included therein.	Quoted to analyze whether lesser offenses charged separately can remain when time-barred; court found this principle inapplicable to separately charged lesser offenses.
Clark v. State, 12 Ga. 350 (2) (1852)	Historical authority cited in support of the Jinks principle regarding the statute of limitations applying to the offense charged.	Used as antecedent authority supporting the court's analysis of limitations as applied to charges in the indictment.
Sikes v. State, 20 Ga. App. 80 (92 S.E. 553) (1917)	The statute of limitations for voluntary manslaughter will not bar a conviction of that offense under an indictment for murder because there is no statutory limitation as to indictments for murder.	Distinguished by the court: supports convictions for lesser included offenses when only the greater offense is indicted, but not where lesser offenses are separately charged.
Manning v. State, 123 Ga. App. 844 (1)(b) (182 S.E.2d 690) (1971)	Support for the principle that lesser offenses may be convicted under indictment for a greater offense where applicable precedents apply.	Cited in the discussion of lesser included offenses and limitations, but noted as not controlling where lesser offenses are separately charged.
Troup v. State, 17 Ga. App. 387 (2) (87 S.E. 157) (1915)	Authority cited among older Georgia cases concerning limitations and included offenses.	Referenced in the court's survey of authority regarding limitations and lesser included offenses.

Court's Reasoning and Analysis

The court's analysis proceeded in two principal steps.

Felony murder counts: The court began by noting that under Georgia law there is no statute of limitations for murder (citing Wooten and OCGA § 17-3-1(a)). It relied on Lumpkins to show that the statutory definition of murder encompasses both malice murder and felony murder, so the legislative prohibition on time limits for murder applies to both forms. The court surveyed decisions from other jurisdictions holding that expiration of the limitations period on the underlying felony is irrelevant to prosecution for felony murder and emphasized authorities that the felony-murder statute does not require that the defendant be separately charged with and convicted of the underlying felony. Based on these principles, the court rejected the trial court's premise that a felony murder conviction depends on successful prosecution of the underlying felony. It also relied on Georgia authorities (Staples, Durden, Latham) permitting one count to incorporate another and holding that a stricken count may still remain on the face of the indictment to aid other counts. From these points the court concluded that expiration of the limitations period for the underlying felony does not preclude prosecution for felony murder and that the trial court erred in sustaining the demurrer and plea in bar as to the felony murder counts.
Non-murder counts (underlying felonies and concealing the death of another): The court examined the State's reliance on authorities allowing conviction of a lesser included offense that is time-barred so long as the indictment charges the greater offense for which no statute of limitations applies. The court observed that the cited authorities involved indictments that charged only the greater offense (so the lesser offense would be merely included). Here, however, the lesser offenses were separately charged as distinct counts. Citing Jinks and related precedents, the court held that the statute of limitations applicable to a criminal case is the one relating to the offense charged in the indictment; accordingly, because the underlying felony counts were separately charged and were outside the limitations period, the trial court correctly barred those counts. The concealing-the-death count, not being murder or a lesser included offense of murder, likewise fell outside the applicable limitations period and must be stricken entirely.

Holding and Implications

Holding: The Supreme Court of Georgia reversed the trial court's ruling insofar as it sustained the demurrer and plea in bar as to the two felony murder counts, and affirmed the trial court's rulings as to the non-murder counts. (Judgment affirmed in part and reversed in part.)

Implications:

The direct effect is that the felony murder counts were reinstated and may be prosecuted despite the expiration of the statute of limitations for the underlying felonies, because murder (including felony murder) is not subject to a limitations period and the underlying felonies need not be separately charged or convicted for a felony murder prosecution.
The separately charged underlying felony counts (conspiracy to commit robbery and aggravated battery) and the count charging concealing the death of another were held time-barred and remain stricken as separate counts; however, the stricken underlying-felony counts remain on the indictment for purposes of incorporation into the felony murder counts.
The opinion does not purport to announce a novel rule beyond applying existing statutory language and precedent; it interprets and applies established Georgia and out-of-state authority to these facts. No broader change in law beyond this disposition is dictated by the opinion.

Decision rendered Oct. 1, 2001. All the Justices concur, except Benham, J., who concurs in Division 1 and in the judgment.

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THE STATE v. JONES

CARLEY, Justice.

The grand jury returned an indictment charging Anita Newberry Jones and two co-defendants with one count of malice murder, two counts of felony murder, and one count each of conspiracy to commit robbery, aggravated battery, and concealing the death of another. The felony murder counts incorporate the conspiracy and aggravated battery counts, respectively, as the underlying felonies. The alleged crimes occurred 14 years prior to the return of the indictment. Ms. Jones filed a demurrer and plea in bar based upon the expiration of the statute of limitations and the State's failure to allege any statutory exception in the indictment. The trial court sustained the demurrer and plea in bar as to every count except malice murder, with the following analysis:

The statute of limitations for prosecution for the felonies of Conspiracy to Commit Robbery, Aggravated Battery and Concealing the Death of Another has expired and the indictment does not allege any reason for the delay. . . . A felony murder conviction is dependent upon the successful prosecution of a felony. Because the State cannot prosecute the felony it cannot prosecute the felony murder.

The State appeals pursuant to OCGA § 5-7-1 (a) (1, 3).

1. The State initially contends that the trial court erred in sustaining the demurrer and plea in bar as to the two counts of felony murder.

There is no applicable statute of limitation for the offense of murder. Wooten v. State, 262 Ga. 876, 880 (3) ( 426 S.E.2d 852) (1993). "A prosecution for murder may be commenced at any time." OCGA § 17-3-1 (a). Under OCGA § 16-5-1, murder is one offense which can be committed in several ways. "The offense of `murder' can be committed either `with malice aforethought' or while `in the commission of a felony.' [Cit.]" (Emphasis in original.)Lumpkins v. State, 264 Ga. 255 (1) ( 443 S.E.2d 619) (1994). Indeed, "each of the three separate [murder] counts in the instant indictment refers to the same crime." (Emphasis in original.)Lumpkins v. State, supra at 258 (4). Thus, OCGA § 17-3-1 (a), in permitting the commencement of a prosecution for "murder" at any time, applies on its face to both malice murder and felony murder.

Foreign jurisdictions which have considered the issue before us have uniformly held that "the running of the statute of limitations on the underlying felony is irrelevant to a prosecution for felony murder. [Cits.]" State v. Dennison, 801 P.2d 193, 202 (VI) (Wash. 1990). See also State v. Lacy, 929 P.2d 1288, 1298 (Ariz. 1996); Sochor v. State, 619 So.2d 285, 290-291 (Fla. 1993); Jackson v. State, 513 So.2d 1093, 1095 (Fla.App. 1987); State v. White, 477 N.W.2d 24, 26 (Neb. 1991); Commonwealth v. Munchinski, 585 A.2d 471, 482-483 (Pa.Super. 1990); People v. Morris, 756 P.2d 843, 850 (II) (A) (2) (Cal. 1988); People v. Harvin, 259 N.Y.S.2d 883, 885-886 (Sup.Ct. 1965). This holding is often based on the statutory exclusion of any limitations period either for homicide or capital crimes in general, or for murder or felony murder in particular. State v. Lacy, supra at 1298; Sochor v. State, supra at 290; Jackson v. State, supra at 1095;Commonwealth v. Munchinski, supra at 482; People v. Harvin, supra at 886. That analysis is clearly applicable in Georgia, since OCGA § 17-3-1 (a) expressly provides that murder is subject to no statute of limitations. "Accepting defendant's argument would effectively impose a time limit on every felony murder case, in direct contravention of legislative intent." State v. Lacy, supra at 1298.

Other jurisdictions also rely on the wording of their felony murder statutes, which, like Georgia's, do "not require that the defendant be charged and convicted of the underlying felony. The jury must simply find that the defendant committed or attempted to commit it." State v. Lacy, supra at 1298. See also OCGA § 16-5-1 (c); State v. White, supra at 26; Commonwealth v. Munchinski, supra at 483. Contrary to the trial court's analysis, a felony murder conviction is not dependent upon the successful prosecution of the underlying felony. "The mere preclusion of the state's capacity to prosecute the subordinate crime because of a time limitation has no effect upon the question of whether such crime was committed." Jackson v. State, supra at 1095. "The crime of murder is independent of the underlying felony. [Cit.] Therefore, the underlying felony need not be charged as a separate substantive offense, and the fact that it is time-barred does not preclude a prosecution for felony murder. [Cit.]" People v. Morris, supra at 850 (II) (A) (2). A felony murder charge "may not be separated into its component parts so that if the Statute of Limitations were a bar to the prosecution of one of the elements of the crime, the major crime, the felony murder charge, would also fall." People v. Harvin, supra at 886. We therefore conclude that the expiration of the limitations period for the underlying felony does not preclude a prosecution for felony murder.

Jones argues that the indictment is nevertheless defective as pled because the felony murder counts are incomplete and incorporate by reference other counts which must be stricken.

Although each count must be complete within itself and contain every allegation essential to constitute the crime, this rule applies to the offense rather than the form. [Cit.] Therefore, one count may incorporate by reference portions of another, [cit.], and the indictment is read as a whole. [Cits.]

Staples v. State, 199 Ga. App. 551, 552, fn. 1 ( 405 S.E.2d 551) (1991). Furthermore, although one count of an indictment, which is specifically incorporated by reference into another count, "may be stricken on demurrer . . ., still the bad count is not thereby expunged from the face of the indictment, or rendered inoperative as an exhibit in aid of the remaining count. . . ." Durden v. State, 29 Ga. App. 548, 551 ( 116 S.E. 41) (1922). See also Latham v. State, 100 Ga. App. 509 (1) ( 112 S.E.2d 163) (1959). Thus, even if the underlying felony counts are stricken due to the expiration of the statute of limitations, they remain a part of the indictment to the extent that they are incorporated into the felony murder counts.

Accordingly, the trial court erred in sustaining the demurrer and plea in bar as to the two felony murder counts.

2. The State further contends that the trial court erred with respect to the non-murder counts as well.

The State relies on the principle that a conviction for a lesser included offense for which the limitations period has expired is appropriate so long as the defendant is tried for the greater offense which is within the statute of limitations. However, all of the cases cited in support of this rule involve indictments only for the greater offense, and not for the lesser offense. "[T]he statute of limitations applicable in a criminal case is that which relates to the offense charged in the indictment, and not to any minor offense included therein of which the accused might be found guilty. [Cits.]" (Emphasis supplied.)Jinks v. State, 114 Ga. 430, 431 (1) ( 40 S.E. 320) (1901). See alsoClark v. State, 12 Ga. 350 (2) (1852). "The provisions of the statute of limitations applicable to an indictment for voluntary manslaughter will not bar a conviction of that offense under an indictment for murder; there being no statutory limitation as to indictments for murder." (Emphasis supplied.) Sikes v. State, 20 Ga. App. 80 ( 92 S.E. 553) (1917). See also Manning v. State, 123 Ga. App. 844 (1) (b) ( 182 S.E.2d 690) (1971); Troup v. State, 17 Ga. App. 387 (2) ( 87 S.E. 157) (1915). However, here, the lesser offenses are separately charged in the indictment and we have been unable to find any authority that such charges can remain as separate counts, where, ordinarily, they would be barred by the statute of limitations. Thus, we hold that the trial court correctly applied the statute of limitations to bar the underlying felony counts. Nevertheless, we recognize that a conviction for the underlying felonies may ultimately be appropriate, as they are lesser included offenses of the felony murder counts. Furthermore, we reiterate that although the underlying felonies are no longer the subject of separate counts, they remain in the indictment as part of the felony murder counts into which they are incorporated.

The count which charges concealing the death of another also falls outside the applicable limitations period and, because it does not charge either murder or a lesser included offense thereof, it obviously must be stricken in its entirety.

Accordingly, we reverse the judgment of the trial court sustaining the demurrer and plea in bar as to the felony murder counts, but we affirm as to the non-murder counts.

Judgment affirmed in part and reversed in part. All the Justices concur, except Benham, J., who concurs in Division 1 and in the judgment.