Aрpellant Shirley Dean Jowers was indicted for the malice murder, felony murder, and aggravated assault of Willie D. Muff. A jury found her not guilty of malicе murder, but did find her guilty of aggravated assault and felony murder. She was sentenced to a term of ten years for the aggravated assault and life imprisonment for the murder. We affirm the conviction and sentence for felony murder and find thаt the offense of aggravated assault is a lesser included offense of felony murder аnd merges therewith. 1
The appellant and the victim had lived together for nine years and had two children. They were arguing when the appellant stabbed the victim in the chest with a butcher knife.
One of the victim’s brothers testified that prior to the stabbing, the appellant, with butcher knife in hand, said: “You’d better get Willie out of here bеfore I kill him.” Another brother testified that she said: “Get Willie D. out of here or I will stick him again.” The brothers further testified that the appellant initially rеfused to allow *402 anyone to use her car to take the victim for help despite thе pleas of the victim and his brothers.
The appellant testified that she did nоt intend to kill the victim and that he was stabbed when they fell during the argument. She denied that she threatened to kill the victim and that she refused to takе the victim to the hospital.
The appellant’s motion in limine to prevent the state from introducing any evidence about a $100,000 insurance policy on the victim’s life was denied. Thе jury heard testimony that the appellant wаs the sole beneficiary of a $100,000 life insuranсe policy on the victim’s life.
1. The appellant may not lawfully be convicted and sentenced for felony murder and the underlying felony of aggravated assault. Proof of the fеlony is essential to support the felony murder conviction, thus, it is a lesser included offensе and must be vacated. OCGA § 16-1-6, and see
Addison v. State,
2. Under the fаcts of this case the trial court did not err in denying the motion in limine regarding the insurance policy nor in charging the jury on malice murder.
3. The evidence was sufficient under
Jackson v. Virginia,
Judgment affirmed in part and reversed in part.
Notes
The сrime was committed on December 4, 1988. The Stеwart County jury returned its verdict of guilty on April 4,1989. Notice of Appeal was filed on April 27,1989. The transcript of evidence was filed on May 23, 1989. The record was docketed in this Court on May 26, 1989. The case was submitted by brief on July 7, 1989.