Troyce Satterfield was convicted for aggravated assault upon his former wife, Yvonne Satterfield, and for the felony murder of her mother, Dixie Skinner. He stabbed both women with a knife. He was sentenced to ten years for the aggravated assault consecutive to life imprisonment for the felony murder. We affirm.
1. Satterfield objected to questions by the state to the sheriffs investigator on direct examination regarding whether Satterfield’s statement was freely and voluntarily made and whether it was made without the slightest hope of benefit or the remotest fear of injury. The objection in each instance was that the question called for a conclusion.
The investigator previously had testified about the contents of a card he had read to Satterfield before Satterfield gave his statement. The card contained a complete recital of the standard Miranda warnings and rights, and included, inter alia, the recital that “I understand and know what I am doing. No promises or threats have been made to me and no coercion, of any kind, has been used against me.” The investigator had testified that Satterfield initialed the card, acknowledging its contents. “[W]here a witness testifies to the circumstances surrounding the confession, showing clearly that it was voluntary, a question then posed to the witness regarding its voluntariness does not call for a conclusion.”
Woods v. State,
2. There is no evidence in the transcript of proceedings indicating that Satterfield ever was in the slightest danger from either of his victims. Accordingly, the trial court did not err by failing to charge on justification.
Lanham v. State,
3. Count one of the indictment charged Satterfield with the malice murder of Dixie. Count two charged him with aggravated *539 assault upon Yvonne. The jury was instructed under count one both as to malice murder and felony murder, the aggravated assault upon Yvonne being the only underlying felony mentioned in the court’s instructions.
Satterfield contends that his conviction and sentence for aggravated assault upon Yvonne must be set aside under authority of our decision in
Stanley v. State,
The state concedes that Stanley is the law where the felony murder and the underlying felony are committed on a single person, but contends that Code Ann. §§ 26-505 and 26-506 do not require the conviction and sentence for the underlying felony to be set aside where, as in the present case, the underlying felony (aggravated assault) was omitted on one person (Yvonne) and the felony murder was committed on another (Dixie).
The state’s position is not without supporting authorities. In
Crawford v. State,
The
Stanley
case, upon which Satterfield relies, involved a single victim, as have several of our recent decisions applying the
Stanley
precept.
Blankenship v. State,
Subsections (b) and (c) of Code Ann. § 26-506 are inapplicable in the present case because all offenses were prosecuted here in a single prosecution in a single court. Subsection (a) of Code Ann. § 26-506 states that when the same conduct of an accused may establish the commission of more than one crime, the accused may be
prosecuted
for each crime but that he may not, however, be
convicted
of more than one crime if (1) one crime is included in the other, or (2) the crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct. We believe the General Assembly did not intend to include within the “ (2) ” category an aggravated assault alleged in one count of an indictment to have been committed on one person and a malice murder alleged in another count of the same indictment to have been committed upon another person. Hence, we turn to Code Ann. § 26-505 to determine whether one of those two offenses was included in the other within the contemplation of Code Ann. § 26-506 (a)(1).
State v. Estevez,
A crime
is
included within another crime charged in an indictment when “(a) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged, or (b) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” We note that Code Ann. § 26-505 makes no attempt to detail all of the instances in which one offense
is not
included within another, the most obvious example of non-inclusion being when the crime is charged in a separate count of an indictment as having been committed upon another person. Had the jury found Satterfield not guilty of the felony murder of Dixie under count one of the indictment, the jury could not have found him guilty under count one of the aggravated assault upon Yvonne, an offense charged in count two of the indictment. See the special concurring opinion of Presiding Justice Hill in
Atkins v. Hopper,
supra,
The jury was not charged as to aggravated assault upon Dixie, an offense that would have sufficed to support the felony murder
*541
conviction under count one.
Phelps v. State,
We distinguish those cases such as
Stanley v. State,
supra, in which both the felony murder and the underlying felony (usually aggravated assault or armed robbery) are committed upon a single victim and in which, consequently, the underlying felony merges with the felony murder, from cases such as
Crawford v. State,
supra, and the present case, in which the underlying felony charged in one count of the indictment is committed upon one victim and the malice or felony murder charged in another count of the indictment is committed upon another person, in which cases, consequently, the underlying felony does not merge with the felony murder conviction. Of course, this problem does not exist when the murder conviction is for malice murder instead of for felony murder.
Ruffin v. State,
We further distinguish these two lines of cases from other cases in which the count of the indictment alleging felony murder sets forth the underlying felony or felonies supporting the charge of felony murder. Atkins v. Hopper, supra. We disapprove of Division 6 of Collier v. State, supra, insofar as it set aside one of the underlying convictions for armed robbery. All of the armed robberies in Collier were committed on persons other than the murder victim and, unlike Atkins v. Hopper, supra, the underlying felony supporting the felony murder count was not specified in the indictment.
The trial court did not err by convicting and sentencing for both the felony murder of Dixie and the aggravated assault upon Yvonne.
Judgment affirmed.