☢ test - Í

Henderson v. Hames, 287 Ga. 534, 697 S.E.2d 798 (July 12, 2010). Habeas court properly granted defendant’s petition, finding that his indictment and convictions for felony misuse of a firearm while hunting, and felony murder based thereon, were void. 1. Misuse of firearm while hunting. “OCGA § 16-11-108 … makes it a misdemeanor, ‘while hunting wildlife,’ to ‘use[ ] a firearm or archery tackle in a manner to endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm to or endanger the safety of another person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation....’ OCGA § 16-11-108(a). The same conduct constitutes a felony where, as charged in the indictment against Hames, it ‘results in serious bodily harm to another person.’ Id. The indictment against Hames did not charge that he ‘consciously disregard[ed] a substantial and unjustifiable risk that his act or omission w[ould] cause harm to or endanger the safety of another person.’ Hames contends that this language identifies the mens rea necessary to commit the crime created by § 16-11-108 and that its omission rendered void his indictment on that charge and the related felony murder charge. The habeas court agreed with this contention, and we do as well.” Contrary to Warden’s argument, allegation that defendant ‘aimed and shot’ “without clearly identifying his target” isn’t sufficient to allege “a substantial and unjustifiable risk of harm” without also alleging that the shooter “actually knew that a person was likely in the area … toward which he was shooting.” 2. Felony murder. “The related felony murder charge, Count 2, incorporated Count 5 as the predicate felony. The indictment thus omitted entirely any reference to the statutory requirement that Hames ‘consciously disregard[ ] a substantial and unjustifiable risk that his act or omission will cause harm to or endanger the safety of another person.’ State v. Austin, 297 Ga.App. 478, 677 S.E.2d 706 (April 13, 2009). Trial court erred in quashing indictment for aggravated assault based on allegation of intent, or lack thereof. Allegation that defendant “did make an assault … contrary to the laws of the State of Georgia,” sufficiently alleged intent. “By tracking the statute, the state presented a technically correct allegation. See OCGA § 17-7-54(a). Moreover, the offense defined by OCGA § 16-5-21(a)(2) is a crime requiring general-rather than specific-intent. See Bishop v. State, 266 Ga.App. 129, 131(2), 596 S.E.2d 674 (2004). Compare OCGA § 16-5-21(a)(1) (“A person commits the offense of aggravated assault when he or she assaults ... [w]ith intent to murder, to rape, or to rob.”) (emphasis supplied). And general intent need not be expressly alleged in an indictment. Adams v. State, 293 Ga.App. 377, 381(3), 667 S.E.2d 186 (2008) (when aggravated assault charge only requires proof of general criminal intent, an indictment is not void for failing to expressly allege such intent); Bishop, supra at 132(2), 596 S.E.2d 674 (‘Because the indictment charged Bishop with aggravated assault under OCGA § 16-5- 21(a)(2), which requires only a showing of a general intent to injure, it was not void for failing to expressly allege the criminal intent.’).” Further, “an allegation that the defendant acted unlawfully is sufficient to encompass both the general intent to commit aggravated assault and the knowledge essential to form that intent. Joiner v. State, 204 Ga.App. 592, 593(3), 420 S.E.2d 73 (1992). See also Hammock [ v. State, 201 Ga.App. 614, 615-616(1)(b), 411 S.E.2d 743 (1991)].” State v. Harris, 292 Ga.App. 211, 663 S.E.2d 830 (June 25, 2008). Trial court properly granted defendant’s motion in arrest of judgment after defendant’s conviction for interference with an emergency call; accusation was defective for failure to allege intent. “OCGA § 16-10-24.3 provides that ‘[a]ny person who verbally or physically obstructs, prevents, or hinders another person with intent to cause or allow physical harm or injury to another person from making or completing a 9-1-1 telephone call or a call to any law enforcement agency to request police protection or to report the commission of a crime is guilty of a misdemeanor.’” Accusation here omitted any reference to the necessary intent. “It is true that in several cases we have held that the failure to allege intent is not fatal where the accusation or indictment employs language that necessarily raises an inference that the requisite criminal intent existed. See Beals v. State, 288 Ga.App. 815, 816(1) (655 S.E.2d 687) (2007) (failure to expressly allege intent to commit a theft in armed robbery count did not void count where the requisite intent was necessarily inferred from the language of the allegations when read as a whole); Hammock, 201 Ga.App. at 615-616(1)(b) (failure to expressly allege criminal intent of child molestation did not void count when the allegations otherwise employed language raising an inference that the criminal intent existed). But in this case, the requisite intent ‘to cause or allow physical harm or injury to another person ’ can not necessarily be inferred from the circumstances surrounding the placement of a 911 emergency call. A 911 emergency call may involve a request for protection of property or the report of a property crime. And, if no personal physical harm or injury is involved, a defendant’s act of obstructing or hindering a 911 call is not a crime under the statute.” Beals v. State, 288 Ga.App. 815, 655 S.E.2d 687 (December 10, 2007). Indictment was sufficient where it alleged that defendant committed armed robbery in that he “‘did then and there unlawfully take the property of another, to wit: one [specific motor vehicle], from the immediate presence of [the victims] by use of an offensive weapon, to wit: a firearm ...’ While it is not explicitly stated in the indictment that Beals intended to commit a theft, such intent is necessarily inferred from the allegation of the use of an offensive weapon to accomplish the taking. [Cit.]” Distinguishing Smith