The State v. Phillips et al.

Summary

The Supreme Court of Georgia vacates the trial court’s order granting the police officers’ general demurrer to a felony-murder count predicated on violation of oath by public officer. The Court holds that a violation-of-oath felony may serve as a felony-murder predicate if, under the circumstances alleged, it created a foreseeable risk of death. The case is remanded for the trial court to consider unresolved general-demurrer arguments concerning whether the indictment adequately alleged violations of the officers’ oaths.

Holdings

1. A felony that is not dangerous per se, including violation of oath by public officer, may serve as a felony-murder predicate if the circumstances of its commission created a foreseeable risk of death.
2. Count 3 was legally sufficient to withstand the general demurrer because it was couched in the language of the felony-murder statute and, read together with the factual allegations in Counts 5 through 9, alleged conduct from which a jury could find a foreseeable risk of death.
3. The court would not address the officers' additional general and special demurrer arguments because the trial court had not ruled on them and they were not properly presented as errors in this appeal.

Questions Presented

1. Whether violation of oath by public officer may serve as the predicate felony for felony murder when the alleged circumstances of the offense created a reasonably foreseeable risk of death.
2. Whether Count 3 of the indictment was legally sufficient to withstand a general demurrer.
3. Whether the Supreme Court should decide the officers' additional general and special demurrer arguments concerning Counts 3 and 5 through 9 when the trial court had not ruled on those arguments.

Disposition

vacated