ATLANTA - The Cobb District Attorney's office will argue today before the state Supreme Court that the justices should overrule the high court's own decision from 1981 on when a felon can be charged with murder.

The case at issue is the State v. Jackson and Smith.

According to case documents, Carlester Jackson, Warren Smith and Jerold Daniels drove from Maryland to Georgia in January 2007 to commit an armed robbery. They went to Cobblestone Apartments, near Pat Mell Road and South Cobb Drive, looking for Arthur Hogan, who they believed was involved in the drug trade.

After spotting Hogan in the parking lot, Smith waited in the SUV and Jackson acted as a lookout nearby while Daniels approached Hogan with a handgun.

Hogan, who was armed, exchanged gunfire with Daniels, killing him before fleeing. Jackson, who was arrested at the scene, confessed to his role in the crime and implicated Smith and Daniels. Smith fled but was later extradited from Rhode Island.

Jackson and Smith were both charged with felony murder.

Georgia's felony murder statute states that a person commits murder "when, in the commission of a felony, he causes the death of another human being."

Last June, Cobb Superior Court Judge Tain Kell dismissed the charges against Jackson and Smith based on the Georgia Supreme Court's 1981 precedent-setting decision, State v. Crane, which stated that the death of a would-be felon does not allow the State to charge a surviving accomplice with felony murder when the death was caused by the victim.

The State argues the high court should overrule its Crane decision and reverse the trial court's decision in this case.

The state Supreme Court has recognized that the legislature's intent behind Georgia's felony murder rule is "to furnish an added deterrent to the perpetration of felonies which, by their nature or by the attendant circumstances, create a foreseeable risk of death." One commits murder if he "causes the death of another," the statute says, but it does not specify that the death must occur at the hand of the defendant, nor does the law specify which person must die in the course of a felony.

The attorneys argue that, like other states' murder laws, "Georgia's felony murder statute should be read to mean that the death could be a victim, a law enforcement officer, or a co-felon - so long as the death was a foreseeable consequence of the dangerous felony."

Tony Axam, and Calvin Edwards, Jr., the attornies for the defendants, argue that the Crane decision was correct and that state statute does not allow for the surviving co-defendant's prosecution for felony murder when the death was not caused by that co-defendant. In this case, the co-defendant was killed by the intended victim.

"The Supreme Court put the General Assembly on notice," the lawyers write in briefs. And for 27 years, the General Assembly has not changed the statute. Despite the State's "strenuous objection" to Crane, the state Supreme Court "is constrained to follow the law as announced in Crane (and followed in subsequent cases)."

Jackson remains in custody.