The opinion
Lawson Cloninger, Judge, dissenting. I respectfully dissent from the majority opinion in this case. Ark. Stat. Ann. § 41-1502 (Repl. 1977) reads in pertinent part:
A person commits murder in the first degree if:. . . with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.
No killing can be murder in the first degree in the absence of premeditation and deliberation. Where there is no testimony indicating any deliberate or premeditated intention to kill and no evidence showing that the defendant harbored any malice or ill will toward the victim, a jury verdict of murder in the first degree is difficult to sustain. Stanley v. State, 183 Ark. 1093 , 40 S.W.2d 415 (1931). See also Blake v. State, 186 Ark. 77 , 52 S.W.2d 644 (1932).
In Simmons v. State, 227 Ark. 1109 , 305 S.W.2d 119 (1957) the court held that the state must prove, beyond a reasonable doubt, that a killing was done willfully, deliberately, maliciously and with premeditation of mind in order to sustain a conviction of first degree murder. The court held that, generally speaking, when the fact of death alone is proved, the presumption is that the crime is murder in the second degree; and, before it can be determined that crime is murder in the first degree, it is incumbent on the prosecution to prove further, by evidence, that the killing was done with premeditation and deliberation. Premeditation cannot be inferred from the fact of death, but there must be evidence of a prior intention to do the act of killing in quéstion. Accordingly, the court reduced the conviction of Simmons to murder in the second degree.
From a review of the record in this case, I can find no evidence which the state introduced on the issue of premeditation and deliberation. The evidence against appellant was circumstantial. In an attempt to discredit appellant’s statement and to prove that the act was an intentional killing, the state relied on expert testimony regarding the nature and character of the wounds, the location of the victim when she was shot, and the significance of the metal tracings on the victim’s hands and body. I agree with the majority that the jury has the duty to determine the value and weight to be given to expert testimony, and that there was substantial evidence to support a jury verdict that appellant did intentionally kill the victim. But I cannot find one shred of evidence to support a finding of first degree murder. The majority states, “Perhaps appellant did not premeditate the murder for long, but an instant of premeditation is long enough.” I agree. However, there is not any evidence to support a finding that appellant harbored even an instant of premeditation.
Therefore, I would reduce the conviction of appellant to murder in the second degree.
Corbin, J., joins in this dissent.