¶1concurring.
¶2At the outset it is important to remember that this accomplice ("lookout”) was indicted and found guilty of murder with malice aforethought and armed robbery of the murder victim, among other crimes.
¶3The primary significance of this decision, which has been discussed and considered by the court to a point beyond exhaustion, is that under the revised Criminal Code a "lookout” who conspired to commit armed robbery can, by virtue of imputed intent, be convicted of murder with malice aforethought committed by a confederate, but that the armed robbery of the murder victim is a lesser crime included in the murder with malice aforethought under the facts here and the conviction for that armed robbery cannot stand in this case. However, the convictions of armed robbery and aggravated assault against persons other than the murder victim are separate crimes, having been committed against other persons (notwithstanding the fact that intent as to these other crimes is imputed to this conspirator from the conspiracy to commit armed robbery). Kramer v. Hopper, 234 Ga. 395.
¶4In reaching these conclusions, the court necessarily has considered prior decisions, which prior decisions warrant exposition. Those decisions, as I see them, are as follows:
¶51. Each case of armed robbery/murder involving more than one perpetrator must be considered on its own facts. Was the conspiracy one to commit armed robbery, or was it to commit murder, or to commit both?
¶62. Armed robbery is a felony (Code Ann. § 26-1902), and is an included crime under felony murder (Code Ann. § 26-1101 (b)), because proof of the felony is essential to prove the felony murder; i.e., proof of felony murder is established in part by proof of the felony (Code Ann. § 26-505 (a)). Thus, where a person is convicted of felony murder and the underlying armed robbery, the armed *519robbery, being an included crime, must be set aside (Code Ann. § 26-506 (a)). Such armed robbery is an included crime under felony murder both as to the actual slayer (Atkins v. Hopper, 234 Ga. 330), and as to the conspirator (Fallings v. State, 232 Ga. 798 (209 SE2d 151)).
¶73. In this case, where the proof of the conspiracy to rob the murder victim was essential to impute malice in murder aforethought to the conspirator, the armed robbery is included in the murder with malice aforethought. Hence, the conviction for armed robbery must be set aside in this case.
¶84. However, as for the man who shot the proprietor in this case, he has committed two separate crimes, murder with malice and armed robbery, because proof of the conspiracy was not essential to impute malice to him. See Gregg v. State, 233 Ga. 117 (b) (210 SE2d 659); Folyd v. State, 233 Ga. 280 (6) (210 SE2d 810).
¶95. On the other hand, if the man who shot the proprietor had been indicted for felony murder, or if the court charged the jury on felony murder at his trial, then the armed robbery would be an included crime with felony murder and would be set aside. Atkins v. Hopper, supra.
¶10This legal reasoning is appealing because of its logic; it is appalling because of its potential for confusion.
¶11However, notwithstanding this potential for confusion, I am reluctantly persuaded that the result reached is correct under the revised Criminal Code. See State v. Estevez, 232 Ga. 316 (206 SE2d 475), construing Code Ann. §§ 26-505, 26-506. Estevezled to Fallings v. State, supra. Therefore, I concur in this decision.
¶12My personal feeling is that where a man robs someone and kills him, he should be punished separately for the murder (I care not which kind) and the armed robbery, and his accomplice should be subject to punishment for each and every crime committed by his conspirator. Notwithstanding my personal feeling, my understanding of the new Criminal Code is that the General Assembly has decided otherwise.