We also recognize that this Court and the Court of Appeals have allowed such a transfer of a mitigated intent from the intended victim to an innocent third party. See, e.g., McLendon v. State, 172 Ga. 267 (4) ( 157 S.E. 475) (1931); Hart v. State, 135 Ga. 356, 357 ( 69 S.E. 530) (1910); Coker v. State, 209 Ga. App. 142, 143 ( 433 S.E.2d 637) (1993). However, the cases from this court generally were issued prior to our current felony murder statute.
Participation in mutual combat by providing a weapon to one of the other parties is sufficient to support a conviction for voluntary manslaughter as a party to the crime under OCGA § 16-2-20 (b) (3). See Coker v. State, 209 Ga. App. 142 ( 433 S.E.2d 637) (1993); Shehee v. State, 167 Ga. App. 542 ( 307 S.E.2d 54) (1983). Matthews contends he is entitled to a directed verdict because Stanford's testimony regarding his participation in the gunfight was uncorroborated.
Emmanuel v. State, 300 Ga. App. 378 , 380 (1) (685 SE2d 361 ) (2009), quoting Taylor v. State, 296 Ga. App. 212 , 213 (1) (a) (674 SE2d 81 ) (2009). See also Coe v. State, 293 Ga. 233 , 235 (1) (748 SE2d 824 ) (2013); Coker v. State, 209 Ga. App. 142 , 143 (433 SE2d 637 ) (1993). Given this shared criminal intent, a defendant who was a party to the gun battle can be held criminally liable for a shooting injury or death caused by the battle, even if the shot was fired by an opponent of the defendant.
His argument hinges upon the assertion that the provocation involved may come from a person different from the one upon whom the defendant has purposefully directed fatal violence. Compare McLendon v. State, 172 Ga. 267 (4) ( 157 SE 475) (1931) (instruction on voluntary manslaughter required when the offense would be voluntary manslaughter if the intended target had died, and instead a third party is killed); Coker v. State, 209 Ga. App. 142 ( 433 SE2d 637) (1993) (crime was voluntary manslaughter when shooting was done in circumstances that would be voluntary manslaughter and defendant killed a bystander). Assuming arguendo that this assertion is correct, but see Foster v. State, 264 Ga. 369, n. 2 ( 444 SE2d 296) (1994), we agree with the court's ruling at trial that Robinson's statement that she was out with another man was not "sufficient to excite sudden, violent, and irresistible passion in a reasonable person, OCGA § 16-5-2."
Gibbs v. State, 309 Ga. 562, 564 (847 S.E.2d 156) (2020) (punctuation omitted); accord Goodson v. State, 305 Ga. 246, 248 (1) (b) (824 S.E.2d 371) (2019). See Hutto v. State, 320 Ga.App. 235, 237 (1) (739 S.E.2d 722) (2013) (holding defendant and victim's history of conflict leading up to the incident, together with victim's final conduct in engaging defendant in a fight was sufficient provocation to excite the passion necessary for conviction of voluntary manslaughter); Coker v. State, 209 Ga.App. 142, 143 (433 S.E.2d 637) (1993) (concluding that, even though shot fired by someone other than defendant strayed and killed a bystander, evidence was sufficient to support conviction for voluntary manslaughter because defendant stood his ground to engage in mutual combat rather than attempting to withdraw peaceably or act solely in self-defense); Jordan v. State, 164 Ga.App. 141, 141 (1) (296 S.E.2d 430) (1982) (finding evidence was sufficient to enable a rational trier of fact to conclude defendant was guilty of voluntary manslaughter in that he fatally stabbed the victim with a knife during an altercation in which he intended to stab someone else). See Happoldt, 267 Ga. at 127 (1) (b) (holding evidence defendant shot into automobile intending to kill his ex-wife and that one of bullets struck his son supported conviction for aggravated assault on his son under doctrine of transferred intent and State was not required to prove that defendant intended to shoot his son); Robertson v. State, 24
But the state presented evidence that the rival groups met to "settle" their dispute, that various members arrived armed, and that the shooting started after Taylor pointed his gun. Under these circumstances, the jury was authorized to reject Taylor's self-defense claim and conclude that he fired his weapon without justification. See Coker v. State, 209 Ga. App. 142, 143 ( 433 SE2d 637) (1993); OCGA § 16-3-21 (b) (3) (person not justified in using force if he "[w]as the aggressor or was engaged in a combat by agreement"). A mutual combatant who withdraws may be justified in using force if the other combatant continues or threatens to use unlawful force, despite the withdrawal.
Instead, the evidence would authorize a rational trier of fact reasonably to conclude that [T. S.] stood his ground to engage in mutual combat [within the proscription of OCGA § 16-3-21 (b) (3)]. [Cit.]" Coker v. State, 209 Ga. App. 142, 143 ( 433 S.E.2d 637) (1993). This is sufficient evidence to support appellant's adjudication of delinquency for having committed the designated felony act of aggravated assault.
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As an alternative, Curry contends that, at worst, the evidence could have supported only a conviction for voluntary manslaughter, citing Coker v. State, 209 Ga.App. 142, 433 S.E.2d 637 (1993). The determination as to whether Curry acted with a sudden, violent, and irresistible passion was a matter for the trier of fact.
Finally, “[i]f a person shoots at another under circumstances that if death had ensued the offense would be reduced from murder to voluntary manslaughter, and by accident the shot hits and kills another person standing by, for whom the shot was not intended, the offense would be voluntary manslaughter.” McLendon v. State, 172 Ga. 267(4), 157 S.E. 475 (1931) ; accord Coker v. State, 209 Ga.App. 142, 143, 433 S.E.2d 637 (1993). While the Supreme Court has questioned the proposition that the provocation necessary for a voluntary manslaughter conviction may come from someone other than the homicide victim, it has so far questioned it only in dicta.
The State argues, however, that sufficient evidence supports the voluntary manslaughter conviction for the homicide of the baby as an unintended victim, based on the concept of “transferred intent,” such as when a defendant shoots at someone as a result of serious provocation but misses and kills a bystander. See McLendon v. State, 172 Ga. 267(4), 157 S.E. 475 (1931); Coker v. State, 209 Ga.App. 142, 143, 433 S.E.2d 637 (1993); but see Foster v. State, 264 Ga. 369, n. 2, 444 S.E.2d 296 (1994) (questioning whether concept of transferred intent from intended victim to third-party is still valid under current felony murder statute). The State's theory at trial was that Graham's anger at the father was transferred to the baby and “manifested itself in grabbing and shaking the baby too hard[,] causing the injuries that resulted in the baby's death.”