dissenting.
I cannot agree with the majority’s implication, see footnote 2 of majority opinion, that voluntary manslaughter is not an authorized verdict when a defendant is reasonably provoked by one person and shoots at that person, accidentally killing a bystander. Nor can I agree with the majority’s bolding that the principles of Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992), do not apply to this case. I therefore dissent.
1. I first take issue with footnote 2 of the majority opinion in which the majority questions whether Foster was even entitled to a charge on voluntary manslaughter. I believe that a holding that he was not would be contrary to the law of this State and a majority of jurisdictions, and would be untenable in view of the rule that a criminal statute must be construed most favorably to an accused.
When A has been reasonably provoked by B into a passion to kill B, and A shoots at B but instead hits and kills innocent bystander C, the rule in what appears to be a majority of jurisdictions is that A is guilty of voluntary manslaughter. See LaFave & Scott, Substantive Criminal Law, Vol. 2, p. 268, § 7.10 (g) (1986); 40 CJS 457, Homicide, § 79 (1991). In fact, LaFave endorses this result, stating that “A’s purpose has been to act against the individual thought to be responsible for his outrage, and thus there are mitigating circumstances which should be taken into account.” Id. at 269. Accord Model Penal Code & Commentary, p. 61, § 210.3 (1980). LaFave recognizes that other states preclude voluntary manslaughter in the above scenario, but notes they have done so by statutes specifically limiting voluntary manslaughter to situations in which B is killed.
Georgia’s voluntary manslaughter statute is not so limited, OCGA § 16-5-2, and to construe it so as not to give the defendant the benefit of his mitigated intent would be contrary to the rule that criminal statutes must be construed most favorably to the accused. See State v. Crane, 247 Ga. 779, 780 (279 SE2d 695) (1981). In fact, *372this State has adopted the construction advocated by LaFave. See Coker v. State, 209 Ga. App. 142, 143 (433 SE2d 637) (1993); McLendon v. State, 172 Ga. 267 (4) (157 SE 475) (1931); Strickland v. State, 9 Ga. App. 552 (1) (71 SE 919) (1911); Hart v. State, 135 Ga. 356 (69 SE 530) (1910).
The majority implies that the fact that this Court’s cases that have allowed the defendant the benefit of his mitigated intent were decided before our current felony murder statute was enacted in 1968 as part of the revisions to our Criminal Code means that those cases no longer need to be followed. However, our felony murder statute, as enacted in 1968, did not change the substantive law of felony murder. See Molnar, Georgia Criminal Law, Homicide, p. 559, § 51 (1990); Note, Felony Murder in Georgia: A Legal Anachronism, 9 Ga. State Bar Journal 462, 474-477 (1973). Before 1968, a person could be convicted of murder if he killed someone in the commission of “a crime punishable by death or imprisonment in the penitentiary.” Id. at 559; Code of 1933, § 26-1009. Under our current statute, a person is guilty of murder if he kills someone in the commission of “a felony.” As “a crime punishable by death or imprisonment in the penitentiary” was the definition of a felony under pre-1968 law, see Code of 1933, § 26-101, the old statute and the new are substantively the same for our current purposes. See Note, supra at 474-477. I believe the majority thus errs in suggesting that our older cases are no longer good law on the basis of the language in our new felony murder statute.
Further, to hold that Foster could not have the benefit of a mitigated state of mind would produce an absurd result. Foster could have been indicted for the malice murder of Harderson under the theory that he intended to kill Perry and that his act of killing Tiffany Harderson should be judged by the intent with which he shot at Perry. Moore v. State, 205 Ga. 37, 46-47 (52 SE2d 282) (1949); James v. State, 83 Ga. App. 847, 852-853 (65 SE2d 55) (1951).
The thing done follows the nature of the thing intended to be done and the guilt or innocence of the slayer depends upon the same considerations which would have governed had the shot killed the person against whom it was directed.
James, 83 Ga. App. at 852. Accord Moore, 205 Ga. 47. Yet, at a trial for malice murder on the theory that Foster had the intent to kill Perry and that his killing of Harderson should be judged by that intent, the idea espoused by the majority in footnote 2 would preclude Foster from arguing that his intent was mitigated by Perry’s conduct. The State should not be able to judge Foster by what it contends was his intent and then preclude Foster from putting forth his evidence regarding his mental condition. Such a result is not only illogical but *373violates notions of fundamental fairness.
I do not dispute that this case presents a classic case of felony murder. What I do dispute is the idea that voluntary manslaughter as a defense to murder was not available to Foster. In fact, the evidence warranted a charge on voluntary manslaughter and the jury returned a verdict of voluntary manslaughter, thus presenting an Edge problem under the unique circumstances of this case.
2. Before reviewing the principles of Edge, I must first recount the charges against Foster, as well as the findings of the jury. Foster was indicted as follows:
Count 1: For the felony murder of Harderson, with the underlying felony being the aggravated assault on Harderson, as alleged in Count 3 of the indictment.
Count 2: For the felony murder of Harderson, with the underlying felony being the aggravated assault on Perry, as alleged in Count 4 of the indictment.
Count 3: For the aggravated assault of Harderson, committed by making an assault on Harderson with a deadly weapon.
Count 4: For the aggravated assault of Perry, committed by making an assault on Perry with a deadly weapon.
Foster was convicted on Count 1 of voluntary manslaughter; on Count 2 of felony murder; and on Counts 3 and 4 of aggravated assault. The court merged the voluntary manslaughter and aggravated assault convictions into the felony murder conviction, sentencing Foster to life imprisonment.
Foster contends that his conviction and sentence for felony murder violate the principles of Edge and therefore cannot stand. More specifically, Foster contends that there was actually one aggravated assault, the shooting at Perry; that that one assault, through the doctrine of transferred intent, formed the basis of the felony murder, voluntary manslaughter, and aggravated assault charges relating to Harderson; that by its finding of voluntary manslaughter on Count 1 of the indictment, the jury found that the one aggravated assault was mitigated; and that therefore under the theory of Edge, the felony murder conviction cannot stand. I agree with Foster’s contention.
Edge, 261 Ga. at 865, involved a homicide in which an assault on one victim formed the basis of the charge on felony murder and voluntary manslaughter. We held that where the evidence warrants a charge on voluntary manslaughter and felony murder and where a jury returns a verdict on voluntary manslaughter and felony murder, the felony murder verdict cannot stand because,
[i]f the jury finds voluntary manslaughter, it necessarily *374finds the felonious assault was mitigated by provocation, and committed without the mens rea essential to impute malice to the killing. Thus, the felony of assault in that instance cannot support a felony murder conviction because there is no malice to be transferred.
Id. at 866.
The issue presented by this case is whether, as the State contends, any Edge concerns are alleviated because the aggravated assault on Harderson formed the basis of the voluntary manslaughter conviction, while the aggravated assault on Perry formed the basis of the felony murder conviction. As we said in Edge, a verdict of voluntary manslaughter would not preclude a verdict of felony murder if the underlying felony is “independent of the killing itself, such as burglary, robbery, or even an assault that is directed against someone other than the homicide victim.” Id. at 867, fn. 3.
Although normally two independent aggravated assaults would alleviate any Edge concerns, the assault charge as to Harderson and the assault charge as to Perry are not independent for purposes of Edge because only one act and one intent formed the basis of the two assault charges. As Harderson was on the front porch of a residence some 100 yards from the place of the shooting and was not aware a shooting was about to occur, the aggravated assault of Harderson was predicated on the transfer of the intent from the assault on Perry to Harderson. Of necessity, the trial court charged the jury on the doctrine of transferred intent and instructed them that it applied to the charges of felony murder, voluntary manslaughter, and aggravated assault. See Fussell v. State, 187 Ga. App. 134, 136 (4) (369 SE2d 511) (1988).4 Thus the voluntary manslaughter and felony murder convictions were based on the same intent, and the jury’s finding of voluntary manslaughter means that the jury necessarily found that the “felonious assault was mitigated by provocation, and committed without the mens rea essential to impute malice to the killing.” Edge, 261 Ga. at 866. The rationale of Edge, then, leads to the conclusion that Foster’s felony murder conviction cannot stand.
Accordingly, although I recognize the terrible and tragic result of Foster’s crime, I would reverse that conviction. Moreover, because the *375evidence authorized the conviction for voluntary manslaughter, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), I would remand the case for the trial court to sentence Foster for the offense of voluntary manslaughter.
Decided June 13, 1994 — Reconsideration denied July 14, 1994. Emerson Carey, Jr., for appellant. J. Tom Morgan, District Attorney, Robert E. Statham III, Thomas S. Clegg, Assistant District Attorneys, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Rachelle L. Strausner, Assistant Attorney General, for appellee.Regarding the doctrine of transferred intent, the Court stated in Fussell that
[w]hen an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it. “In legal contemplation, the intent follows the act through to its legitimate results.” Cook v. State, 255 Ga. 565, 566 (1) (340 SE2d 891) (1986).
Fussell, 187 Ga. App. at 136.