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DUMAS v. STATE6/17/1996
he State acknowledges that Georgia has abolished the inconsistent verdicts rule, but argues that each count of the indictment must be viewed separately;
hence, even if the court had accepted the verdicts as first rendered, the State urges that the court would not have been authorized to find Dumas guilty only of the lesser offense.
Both Dumas and the State have overlooked the dispositive issue in this appeal. It is true that in Milam v. The State, this Court rejected the inconsistent verdict rule in criminal cases. Milam involved a criminal defendant charged with two murders committed at the same time. The jury returned a verdict of not guilty by reason of insanity as to one murder, and guilty but mentally ill as to the other murder. This Court affirmed, ruling that there was no error inherent in the inconsistency between the conviction and acquittal. The Milam ruling stands for the proposition that a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count. Likewise, virtually all other Georgia cases affirming Georgia's abolition of the inconsistent verdict rule involve jury verdicts of guilty and not guilty that are alleged to be inconsistent. These cases are in accordance with the principle that it is not generally within the trial court's power to make inquiries into the jury's deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts.
However, this appeal presents an entirely different scenario, because it involves two verdicts of guilty that not only were inconsistent, but also were mutually exclusive. The Court of Appeals in Thomas v. The State, recently stated:
"The general rule dispensing with the necessity for consistency as between acquittals and guilty verdicts under a multi count indictment or information is not ordinarily applied where the jury returns multiple convictions as to crimes which are mutually exclusive of each other."
In Thomas, the defendant was found guilty of both armed robbery of a car and theft by receiving the stolen car. The Court of Appeals relied upon precedent in concluding that an essential element of theft by receiving is that the goods be stolen by someone other than the accused. Hence, the two convictions in Thomas were mutually
exclusive. However, because there was evidence to convict on the greater charge of armed robbery, the Court of Appeals simply vacated the lesser conviction for theft by receiving.
This Court unanimously reversed, and ruled that where there are mutually exclusive convictions, it is insufficient for an appellate court merely to set aside the lesser verdict, because to do so is to speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court. Because it was both legally and logically impossible to convict Thomas of both counts, a new trial was ordered.
The two convictions involved in this appeal, for malice murder and vehicular homicide, like the ones in Thomas, are mutually exclusive. Malice murder is defined as the killing of another "with malice aforethought, either express or implied." Vehicular homicide is defined as killing another while operating a car, "without malice aforethought" and "without an intention to do so." Hence, in its first verdict, the jury in this case convicted Dumas of killing with malice aforethought and without malice aforethought; of killing both with and without an intention to do so. Obviously, the two verdicts were mutually exclusive, and under both the case law and the legal commentaries discussed above, the trial court was absolutely correct w
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