concurring.
I concur in the judgment but have a comment as to Division 3 of the opinion.
I would have dissented to Division 3 and to the opinion but for the appellant’s failure to object to the striking of the voluntary manslaughter finding of guilty and allowing the felony murder verdict to stand.
When a defendant, as in this case, has been found guilty of two crimes, one lesser than the other, and the convictions are based upon the same evidence, the greater crime should be struck. In Parks v. State, 254 Ga. 403, 414 (330 SE2d 686) (1985), this Court held:
Intent to kill is an essential element of both murder and voluntary manslaughter. OCGA §§ 16-5-1 and 16-5-2. Provocation, or the lack thereof is what distinguishes the two offenses.
Our voluntary manslaughter statute, OCGA § 16-5-2, provides in relevant part:
(a) A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. . . . (Emphases supplied.)
By virtue of being found guilty of both murder and voluntary manslaughter, the defendant was necessarily found to have committed an act which would otherwise be murder and to have acted solely as the result of a sudden, violent, and irresistible passion resulting from a provocation serious enough to elicit such passion from a reasonable person. By the language of our own statutes, the acts of murder and voluntary manslaughter contain elements which make them mutually exclusive and not susceptible to proof by the same evidence. To read these laws otherwise, is to make the existence of the lesser offense of voluntary manslaughter a nullity.
*743Decided November 15, 1991 — Reconsideration denied December 5, 1991. Beauchamp & Associates, Kermit S. Dorough, Jr., Richard L. Hodge, for appellant. Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, Michael J. Bowers, Attorney General, Peggy R. Katz, Staff Attorney, for appellee.