concurring.
I concur fully in the majority opinion, but write separately to expound upon the “mutually exclusive verdicts” issue discussed in Division 3.
Although I filed a rather strong dissenting opinion in Jackson v. State, 276 Ga. 408 (577 SE2d 570) (2003), it is now the law of Georgia and I am bound to follow it when applicable. The circumstances in this case are very similar to those present in Jackson. Here, as there, the jury returned guilty verdicts on a count alleging felony murder during the commission of aggravated assault, and on an alternative count charging the involuntary manslaughter of the same victim through reckless conduct. According to Jackson, these two guilty verdicts would be mutually exclusive in the event that the aggravated assault supporting the murder count represents a finding that Flores acted intentionally under subsection (a) (1) of OCGA § 16-5-20 when he shot Williamson, since the involuntary manslaughter verdict clearly reflects the finding that he acted only with criminal negligence when he did so. Thus, the verdicts are mutually exclusive if they indicate that the jury found that Flores shot the victim both intentionally and unintentionally.
Under Jackson, supra at 412 (2), fn. 5, the verdicts are reconcilable only if the aggravated assault underlying the murder count was based upon Williamson’s fear in accordance with subsection (a) (2) of OCGA § 16-5-20, rather than predicated upon Flores’ intent to harm him under subsection (a) (1) of that statute. In that event, there would be no conflict over whether the gun was fired intentionally or *786negligently. As to both the aggravated assault and the reckless conduct, Flores would have acted without any intent to shoot the victim.
This case differs from Jackson in that the separate count charging that Flores committed aggravated assault was based upon subsection (a) (2) of OCGA § 16-5-20. As the majority points out, however, the relevant count is that alleging the felony murder of Williamson, and that count is broad enough to encompass Flores’ commission of aggravated assault under both subsection (a) (1) and (a) (2) of the statute. Moreover, the evidence is sufficient to authorize a finding of his guilt under either subsection, and the trial court, when instructing on the felony murder charge, informed the jury that
[i]t is only necessary that the evidence show beyond a reasonable doubt that the defendant attempted to cause a violent injury to the alleged victim or intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury. (Emphasis supplied.)
Thus, the jury clearly received instructions as to both subsections (a) (1) and (a) (2) of OCGA § 16-5-20 in connection with the felony murder count. After giving that inclusive charge, the trial court immediately instructed the jury that
[i]f you find and believe beyond a reasonable doubt that the defendant committed the homicide alleged in this bill of indictment at the time the defendant was engaged in the commission of the felony of aggravated assault as I have previously defined it to you, then you would be authorized to find the defendant guilty of murder, whether the homicide was intended or not. (Emphasis supplied.)
This charge, in effect, authorized the jury to find Flores guilty of felony murder if it found that he committed aggravated assault under either subsection (a) (1) or (a) (2) of OCGA § 16-5-20. Although the language in the trial court’s subsequent charge and recharge in connection with the separate aggravated assault count was properly limited to subsection (a) (2), the broader charge on felony murder during the commission of aggravated assault was never withdrawn. As to the guilty verdict on that felony murder count, the jury did not indicate which subsection of the aggravated assault statute it found to be the predicate offense. Giving Flores the benefit of the doubt, we must consider the verdict on that count to be based on the finding of intentional aggravated assault under subsection (a) (1) and, thus, to be “mutually exclusive” of the guilty verdict for reckless conduct. Since the two verdicts are not indisputably compatible and may represent *787inconsistent findings that Flores acted both intentionally and unintentionally when he fired the fatal shot, Jackson mandates a new trial on the felony murder and involuntary manslaughter counts.
The majority never clearly identifies the error on the part of the trial court which mandates reversal as to those two counts. According to our previous cases, that error lies in the trial court’s improper charge to the jury. See Dumas v. State, 266 Ga. 797, 800 (2) (471 SE2d 508) (1996); Thomas v. State, 261 Ga. 854, 856 (1) (413 SE2d 196) (1992). Thus, where, as here, the indictment contains alternative counts alleging potentially mutually exclusive crimes, the trial court “should have instructed the jury that a guilty verdict could be returned upon either count but not both.” Milanovich v. United States, 365 U. S. 551, 554-555 (81 SC 728, 5 LE2d 773) (1961) (cited with approval in Thomas v. State, supra at 855 (1)). The error noted in Jackson, supra at 410 (2), was that, “rather than instructing the jury not to return a mutually exclusive verdict, the jury . . . was expressly charged that it could render a verdict of guilty on every count in the indictment.” The trial court in this case likewise expressly instructed the jury that it should return a verdict on every count, and failed to charge that guilty verdicts could not be returned as to both the felony murder and involuntary manslaughter counts if the jury found that the fatal aggravated assault was based upon Flores’ intentional act of shooting Williamson.
[W]here 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 the trial court. [Cit.]
Dumas v. State, supra at 800 (2). As the result of the error in the charge, Flores is entitled to a new trial as to those counts.
For the benefit of the bench and bar, it should be noted that the principle of mutually exclusive verdicts sets a potential trap for the unwary. In criminal cases, the accused need not formally object to jury instructions. OCGA § 5-5-24 (a). Thus, the defendant who does not object to the erroneous charge can still raise the mutually exclusive verdicts issue on appeal. Indeed, even an accused who induced the erroneous instruction will be entitled to a new trial, because the judgment entered on a mutually exclusive verdict is deemed void. Jackson v. State, supra at 410 (2), fn. 2. In this case, Flores did not induce the trial court’s erroneous charge, but, when the trial court asked whether he had any objections, he responded in the negative. While this would constitute a waiver of the right to enumerate error as to the charge itself, I assume that, under Jackson, waiver, like *788induced error, will not prevent Flores from relying upon the principle of mutually exclusive verdicts to attack the void felony murder judgment on appeal.
Decided April 27, 2004. Teddy L. Henley, for appellant. James R. Osborne, District Attorney, Theo M. Sereebutra, Assistant District Attorney, Thurbert E. Baker, Attorney General, Raina Nadler, Assistant Attorney General, for appellee.Since there is no requirement that the issue ever be raised below, our trial judges and prosecuting attorneys would be well advised to exercise extreme caution in a case in which the indictment or accusation charges alternative offenses which may result in mutually exclusive verdicts.
[A] mutually exclusive verdict may be rendered in a particular case where the offenses or acts alleged in the indictment [or accusation] . . . reflect that the jury, in order to find the defendant guilty on both counts, [must] necessarily reach[ ] “two positive findings of fact that cannot logically mutually exist.” [Cit.] To determine whether this [can] occur[ ], the alleged underlying offenses or acts must be carefully scrutinized.
Jackson v. State, supra at 410-411 (2). Thus, instructions requested by the prosecution and defense in a criminal case involving alternative counts which are potentially mutually exclusive should be scanned with care to insure that the jury is not told that it can return verdicts as to all counts, and that it is informed that the defendant can be found guilty on only one of mutually exclusive charges. Where proper charges are not requested by either side, the trial court should give them sua sponte. If the trial court fails to give the necessary instructions, the error in its charge can be cured by examining the verdicts to determine if they are mutually exclusive and, if they are, by sending the jury back for further consideration as to which crime the defendant is guilty of committing. See Dumas v. State, supra at 798 (2). However, where, as here, the proper instructions are neither requested nor given sua sponte, and the error is not corrected by the trial court’s subsequent refusal to accept mutually exclusive verdicts returned by the jury, the defendant must be granted a new trial as to the two offenses. Jackson v. State, supra.