This case is before us on Obie Phillips’ appeal from the denial of his plea in bar of double jeopardy. See generally Patterson v. State, 248 Ga. 875 287 SE2d 7 1982. Phillips was indicted on charges arising out of the robbery and shooting death of Malone Pace. At issue are two counts in the indictment. Count 2 of the indictment charged Phillips with felony murder, alleging that he did “unlawfully during the commission of the following felony, to wit: Aggravated Assault, cause the death of Malone Pace, a human being, by shooting him with a handgun.” Count 4 of the indictment charged Phillips with aggravated assault, alleging that he committed “an assault upon the person of Malone Pace, by shooting him with a handgun, all with the intent to rob Malone Pace.” At Phillips’ trial in May 1999, the jury was unable to reach a verdict on Count 2, felony murder, and the trial court entered a mistrial on that count.1 The jury’s verdict provided that “as to Count 4 of the Indictment, we, the jury, find the Defendant Not Guilty of the Offense of Aggravated Assault.”
Phillips filed a plea in bar claiming that the jury’s acquittal on the aggravated assault charge prevented the State from prosecuting him for the felony murder based on the underlying felony of aggravated assault. See generally North Carolina v. Pearce, 395 U.S. 711, 717 23 LE2d 656, 89 SC 2072 1969 double jeopardy protects, inter alia, against a second prosecution for same offense after acquittal; Stephens v. Hopper, 241 Ga. 596 1 247 SE2d 92 1978 double jeopardy analysis. Phillips’ argument is not based on the language in the indictment, which he acknowledges set forth two different forms of aggravated assault, i.e., the Count 4 charge of aggravated assault with intent to rob, see OCGA § 16-5-21 a 1, and aggravated assault with a deadly weapon, see OCGA § 16-5-21 a 2, as the felony underlying the Count 2 felony murder charge. Rather, Phillips argues that the trial court’s instructions to the jury obliterated the distinction between the two forms of aggravated assault.
