Everett v. State

BROCK, Justice

(dissenting).

After having studied the record, I am convinced that the evidence does not support a finding of premeditation which, of course, is a necessary ingredient of murder in the first degree. T.C.A. § 39-2402.

Ever since 1858 murder in Tennessee has been divided into two separate offenses. See Code of 1858, §§ 4598 — 4599. It is of the utmost importance that the courts delineate the two offenses, because the difference in punishment is the difference between life and death, literally. T.C.A. §§ 39-2406, 39-2408. Murder in the first degree includes the lesser offense of murder in the second degree. Grove v. State, 211 Tenn. 414, 419 , 365 S.W.2d 292, 294 (1963). Willfulness and malice are required elements of both second degree murder and first degree murder; it is the added element of premeditation-deliberation which distinguishes first degree murder from second degree murder. Unfortunately, this distinction between the two offenses has not always been made clear by this Court.

In the case at bar the majority opinion states:

“Deliberation and premeditation involve a prior intention or design on the part of the defendant to kill, however short the interval between the plan and its execution. It is sufficient if only a moment of time elapses between the plan and its execution as long as the jury can conclude from the evidence that there was some appreciable interval, however small.”

Clarke v. State, 218 Tenn. 259 , 402 S.W.2d 863 , is correctly cited to support the quoted statement. But, in my view, the Court in Clarke did not accurately define “premeditation.” More than a split-second intention to kill is required to constitute premeditation.

From the early days of statehood this Court has conceived that the premeditation-deliberation element of first degree murder *29 requires that the act be performed with a cool purpose. Drye v. State, 181 Tenn. 637 , 184 S.W.2d 10 (1944); Winton v. State, 151 Tenn. 177 , 268 S.W. 633 (1924); Turner v. State, 119 Tenn. 663 , 108 S.W. 1139 (1907); Poole v. State, 61 Tenn. 288 (1872); Dale v. State, 18 Tenn. 551 (1837). Thus, in Win-ton, our predecessors held that in order to constitute murder in the first degree “the cool purpose must be formed and the deliberate intention conceived in the mind (of the accused), in the absence of passion, to take the life of the person slain.” (Emphasis added.) If the purpose to kill is first formed during the heat of passion, the accused, to be guilty of first degree murder, must have committed the act after the passion has subsided. “Passion,” as here used, means any of the human emotions known as anger, rage, sudden resentment or terror which renders the mind incapable of cool reflection. Drye v. State, supra.

It has been held that “premeditation” means that the killing must have been meditated, planned in the mind, beforehand, and that the design to kill must have preceded the killing by an appreciable length of time — time enough for cool deliberation. Of course, to deliberate and to meditate on an act means to think it over and to weigh the consequences, and when there is no appreciable time therefor, there can be no deliberation and no premeditation. Premeditation by its very nature is not instantaneous, but requires some time interval. Jenkins v. State, 230 A.2d 262 (Del.Supr.); Leyva v. State, 2 Md.App. 120, 233 A.2d 498 ; State v. Rodriguez, 23 N.M. 156 , 167 P. 426 ; State v. Arata, 56 Wash. 185 , 105 P. 227 ; Heglin v. State, 236 Ind. 350 , 140 N.E.2d 98 .

If the killing is done in passion, that is, in anger, the offense is not murder in the first degree; but, if in passion adequately provoked and acted upon before the passion has cooled, it is voluntary manslaughter; and if in passion in fact, although the provocation is insufficient to reduce the offense to manslaughter, it is murder in the second degree only. Drye v. State, 181 Tenn. 637 , 184 S.W.2d 10 (1944). Once the fact of killing has been established, the law presumes it to be murder in the second degree. Witt v. State, 46 Tenn. 5 (1868).

Applying the foregoing principles to the evidence in the ease at bar, it appears to me that the killing occurred upon a sudden heat of excitement and anger which, true enough, did not amount to adequate provocation sufficient to reduce the killing to voluntary manslaughter, but, does negate a finding of cool deliberation which is essential to a finding of first degree murder. “Although the proof shows that a defendant did intend to kill, still, if the design was formed upon a sudden impulse of passion, without adequate provocation, and disconnected with any previously formed design, and if executed willfully and maliciously, it is murder in the second degree only.” Gray v. State, 63 Tenn. 331 (1874). The petitioner did not seek out the deceased; he merely went to Brown’s Grocery store to purchase some groceries and was on his way back to his pickup truck when he chanced to meet the deceased, Steve Howard. It was only after the deceased, Howard, challenged the petitioner with the words “What do you want to do about it” and followed petitioner to his pickup truck with his (Howard’s) hands clenched into fists in a menacing manner that the petitioner placed his groceries in the truck and picked up a claw hammer and took a swing at Howard. At this point in the sequence of events, I am convinced that the petitioner was enraged and pulled his pistol and shot Howard at a time when his mind was under the influence of excitement and passion to such an extent that he was not capable of reflecting and acting with that degree of coolness and deliberation of purpose which our statute requires to constitute murder in the first degree.

I would follow the procedure used in Forsha v. State, 183 Tenn. 604 , 194 S.W.2d 463 (1946) and hold that the evidence preponderates in favor of the defendant’s innocence of murder in the first degree because *30 of failure to prove deliberation and premeditation, but warrants a conviction of murder in the second degree and, if the State agrees, reduce the sentence to the minimum prescribed for second degree murder, or, if the State does not agree, reverse and remand for a new trial.