He had also been acting under provocation aggravated by in- toxication. The findings of A and not A are inconsistent, and to pick out one as dispositive of both counts would be arbitrary and is not required. The present case is different. Here, Kennedy argues, the lack of inconsistency works in the defendant's favor. For many years Illinois judges submitted homicide cases to juries in the confusing fashion illustrated by this case.
Jurors know that murder is a more serious crime than manslaughter.
They know that killing under provocation is less reprehen- sible than unprovoked killing. Despite the legal jargon in which these distinctions come clothed they correspond to fundamental moral intuitions. But a jury of human beings in convicting Kennedy of murder, was more likely rejecting the plea in mitigation implicit in the instruction that killing under great provocation is merely voluntary manslaughter. Perhaps the jury thought Kennedy guilty of murder but was not entirely confident of this, so convicted him of voluntary manslaughter on the theory that if it was not murder that he had committed it must have been man- slaughter. This is rank speculation.