O.C.G.A. § 16-4-2 (2019)
Conviction for criminal attempt where crime completed
A person may be convicted of the offense of criminal attempt if the crime attempted was actually committed in pursuance of the attempt but may not be convicted of both the criminal attempt and the completed crime.
History
Code 1933, § 26-1004, enacted by Ga. L. 1968, p. 1249, § 1.
Annotations
JUDICIAL DECISIONS Lesser included offenses. - Aggravated assault with intent to commit murder and with a deadly weapon may be charged as lesser included offenses of murder. Hall v. State, 163 Ga. App. 515, 295 S.E.2d 194 (1982). When an attempt to commit one crime can only be proved by proof of another, greater, consummated crime, the attempt of the former cannot possibly be ‘‘included’’ in or ‘‘lesser’’ than the latter. Cannon v. State, 167 Ga. App. 225, 305 S.E.2d 910 (1983). One may be convicted of assault, though criminal act intended was completed. - It is intent of legislature that although assault may be a criminal attempt, and even though criminal act intended be completed, a conviction for assault is authorized. Williams v. State, 141 Ga. App. 201, 233 S.E.2d 48 (1977). One may be convicted of simple assault though battery was committed. - Recognizing fact that assault is nothing more than an attempted battery, (and thus that every battery necessarily includes an assault) by virtue of O.C.G.A. §§ 16-4-2 and 16-5-22, it is presently lawful to convict for simple assault even though proof shows that a battery was committed. C.L.T. v. State, 157 Ga. App. 180, 276 S.E.2d 862 (1981). Not entitled to jury charge on lesser included offense of attempted armed robbery. - Trial court did not err by refusing to charge the jury that the jury could find the defendant guilty of attempted armed robbery as an included offense of aggravated assault with intent to rob since the defendant was not entitled to a charge or verdict of attempted armed robbery when that offense could only be proved by showing that the defendant brandished a weapon in the faces of the victims with the intent to rob the victims, that is, that the defendant actually committed the greater offense, a completed aggravated assault with the intent to rob. Since the evidence that proved that the defendant committed an attempted armed
robbery necessarily proved that the defendant committed the greater, completed crime of aggravated assault with intent to rob, there was no evidence that the defendant committed only the offense of attempted armed robbery and, therefore, the defendant was not entitled to a charge on that lesser included offense. Pilkington v. State, 298 Ga. App. 317, 680 S.E.2d 164 (2009), cert. denied, No. S09C1717, 2010 Ga. LEXIS 54 (Ga. 2010). Recovery for personal injuries. - Legislative purpose of the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. does not preclude recovery for personal injuries. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 447 S.E.2d 617 (1994). Evidence sufficient for giving charge on criminal attempt. - See Plummer v. State, 168 Ga. App. 108, 308 S.E.2d 210 (1983). Convictions for attempt and completed offenses involving different victims. - Because the defendant’s seven attempted armed robbery convictions involved different victims than the defendant’s 13 completed armed robberies, the defendant victimized 20 separate individuals and, thus, the defendant was properly convicted and sentenced on each of the 20 counts. Houston v. State, 302 Ga. 35, 805 S.E.2d 34 (2017). Cited in Bearden v. State, 122 Ga. App. 25, 176 S.E.2d 243 (1970); Adams v. State, 129 Ga. App. 839, 201 S.E.2d 649 (1973); Jones v. State, 238 Ga. 51, 230 S.E.2d 865 (1976); Scott v. State, 141 Ga. App. 848, 234 S.E.2d 685 (1977); Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977); Harper v. State, 157 Ga. App. 480, 278 S.E.2d 28 (1981); Schwerdtfeger v. State, 167 Ga. App. 19, 305 S.E.2d 834 (1983); Parham v. State, 218 Ga. App. 42, 460 S.E.2d 78 (1995); Spivey v. State, 243 Ga. App. 785, 534 S.E.2d 498 (2000); Sewell v. State, 244 Ga. App. 449, 536 S.E.2d 173 (2000); Colbert v. State, 255 Ga. App. 182, 564 S.E.2d 787 (2002); Calloway v. State, 303 Ga. 48, 810 S.E.2d 105 (2018).
CRIMINAL ATTEMPT, CONSPIRACY, & SOLICITATION
RESEARCH REFERENCES Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, §§ 21, 149. C.J.S. - 42 C.J.S., Indictments and Informations, § 317. ALR. - Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.
Attempt to commit assault as criminal offense, 79 A.L.R.2d 597. Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341.