¶1dissenting.
¶2“ ‘Consistency in the verdict is not necessary.’ ” So wrote Oliver Wendell Holmes for the Supreme Court of the United States in Dunn v. United States, 284 U. S. 390, 393 (52 SC 189, 76 LE 356) (1932). He stood on rationale that had been developed in even earlier cases. The case involved three charges; the jury convicted defendant of one charge and acquitted him on two. One must look at this as though separate trials were had as to each, Justice Holmes wrote, with the same evidence presented at each trial. Res judicata could not be pleaded at the other trials, on separate counts, if the first resulted in acquittal. When tried together, so long as a guilty verdict is supported by evidence, it is not invalidated by an acquittal of a charge which also was supported by evidence had the jury chosen to convict.
¶3More recently, the Supreme Court affirmed the rule and explained its logic. United States v. Powell, 469 U. S. 57 (105 SC 471, 83 LE2d 461) (1984). When a defendant is tried on two consistent charges and the jury convicts of one but acquits of the other, the Court reasoned-that it is possible “that the jury, convinced of guilt, properly reached its conclusion on [one] offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion *436on the [other] offense.” Id. at 65. If the evidence supports the conviction, then defendant simply gets a windfall. The criminal defendant is protected against jury irrationality or error not in his favor “by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.” Id. at 67. With the decision in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), Georgia now follows the same rule.
¶4The instant case, like Cleveland v. State, 212 Ga. App. 361 (441 SE2d 820) (1994), involves acquittal of aggravated assault and conviction of possession of a firearm during commission of a felony. Applying the rule adopted in Milam, the court affirmed Cleveland’s conviction because the evidence supported it. The same applies to Strong’s case.
¶5The situation was different in Thomas v. State, 199 Ga. App. 586 (405 SE2d 512) (1991). Thomas was convicted of both armed robbery of a car and theft by receiving a stolen car, the same one. There was evidence to support either offense, but the elements were mutually exclusive so both convictions could not stand. The court vacated the conviction for theft and affirmed the conviction for armed robbery. Id. at 588 (1).
¶6Harrison v. State, 213 Ga. App. 366, 368 (3) (444 SE2d 613) (1994), also presented a conviction on mutually exclusive verdicts. Defendant was charged with armed robbery against Betty Jean Walker and possession of a firearm during commission of that crime. The jury found him guilty of the lesser included offense of theft by taking, plus possession of a firearm. The latter could not stand because the amount taken from Walker was $20, which made the theft a misdemeanor, and an element of the crime of firearm possession is that it be committed during a felony. OCGA § 16-11-106 (b). The verdict for theft by taking, a misdemeanor under the facts, acquitted defendant of armed robbery and thus excluded a verdict for possession of a firearm during commission of a felony. This was not an instance of jury lenity, mistake in conveying the jury’s real conclusions, or compromise.
¶7Mutually exclusive verdicts, which cannot both stand, result in two positive findings of fact which cannot logically mutually exist. Inconsistent verdicts, which do not introduce invalidity, bespeak a positive finding of fact as to one charge and the failure to make a positive finding of fact as to the other. The latter, which results in an acquittal, does not constitute a negative finding of fact but may be explained as compromise, mistake, or lenity. We can neither speculate nor inquire.
¶8Justice Rehnquist recognized the distinction between inconsistent verdicts, which can stand, and those which are mutually exclusive, which cannot. In the last footnote in Powell, he was careful to *437note, “Nothing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other. [Cits.]” Powell, supra at 69, n. 8. Inconsistent verdicts involve a conviction on one count and an acquittal on another count; mutually exclusive verdicts involve two convictions.
¶9In this instance there is inconsistency, not mutual exclusivity. I agree with Presiding Judge McMurray.
¶10I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.