(dissenting).
I dissent. The record is wholly without proof that would show premeditation. All murders are presumed by law to be in the second degree and it is incumbent upon the parties to proof that the homicide was of a higher or lower degree. See Witt v. State, 46 Tenn. 5. The fact that the defendant denied his guilt proves nothing. It is not inconsistent with human nature that a person who has accidently killed another under circumstances that would constitute involuntary manslaughter, or indeed nonculpable homicide, might seek to evade detection as the killer. So the fact that he denied complicity proves nothing except that he wanted to escape the consequences, in so far as possible, of his rash act. The state of mind at the time of the killing is the key factor.
“The mental state of the assailant at the moment, rather than the length of time the act may have been premeditated, is the material point to be considered. The mental process, in the formation of the purpose to kill, may have been instantaneous, and the question of vital importance is — was the mind, at that moment, so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was death of the person assaulted, the object sought to be accomplished — the end determined upon.”
Lewis v. State, 40 Tenn. 127
Also the fact that the defendant admitted that he did what he wanted to do says nothing to dispell the presumption of law the majority opinion would ignore. Second degree murder is a wilfull act. It is something the killer wants to do. However the law presumes that the intent to kill was not preconceived, coolly and deliberately formed. The law presumes under facts such as are in this record that the killer, in an emotional state in which his better judgment is overcome by passion and anger, lashes out and kills — not for ■profit; not for revenge; not because of hatred; but, incongruously, because of regard, affection and love for the object of his wrath. It is no psychological happenstance that most murderers kill those whom society would suppose would be most protected by the killer. Thus wives kill their husbands more often than they kill lovers. Husbands kill their wives more frequently than girlfriends. Many sons and daughters are killed by their parents and vice versa. Close friends, relatives, and neighbors are more apt to kill one another than strangers. This is because of the emotional ties between victim and murderer. It is this link that makes the average second degree murder so easy to solve. If a wife is found killed, the husband is the logical suspect, etc.
Contrast this with first degree murder, the classical example of which is that accomplished by a professional, hired killer. There is no emotional factor involved. More often than not the assassin resides in a different part of the country and has never heard of the victim until he is employed to kill him. This murderer, for which the law reserves the highest penalty, is seldom caught. It is well known that not one conviction for a so called “gangland murder” has ever been obtained in Chicago, al*370though more than a thousand have occurred since prohibition days in that city.1
I cannot agree that there was any justification whatsoever in showing to the jury the gruesome pictures that were probative of nothing material to this lawsuit that was not competently proved by other, less lurid means. The use of such photographs should not be condoned where it appears they are likely to unduly prejudice a jury. Jenkin v. Associated Transport, Inc. 330 F.2d 706 (6th Cir. 1964).
I would reduce the degree of murder to that the law presumed it to be and modify the judgment in accordance with the procedure approved by the Supreme Court in Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463.
. Federal Bureau of Investigation — Homicide Statistics.