dissenting.
I agree with the majority opinion in affirming the murder conviction in this case. I do not, however, agree with the majority opinion in holding the armed robbery conviction in addition thereto does not amount to double jeopardy in this case.
It is well established that in a felony-murder trial the state need not show premeditation in order to obtain a conviction for murder in the first degree. The state need only show the death occurred in the commission of the underlying felony. On the other hand, if the murder did not occur in the commission of a felony, the state must show premeditation in order to secure a conviction for first degree murder.
In this case the state did not show, so far as I can determine from the record, any premeditation upon which to base a conviction of first degree murder. The state proved the murder occurred during the course of an armed robbery. Thus, the state’s evidence showed a felony-murder had been committed. The state sought and obtained, in addition to the first degree murder, a conviction for armed robbery. The defendant was sentenced on both convictions with the sentences to be run consecutively. In my view this amounted to a violation of the double jeopardy prohibition.
In Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), the Supreme Court held a conviction for felony-murder barred a subsequent conviction for the underlying armed robbery because of the double jeopardy prohibition. Our Supreme Court followed this rule in Briggs v. State, 573 S.W.2d 157 (Tenn.1978).
The majority says Briggs held a conviction for common law murder and armed robbery will withstand a double jeopardy attack. In my view this is an oversimplification of the Briggs case.
In discussing this proposition our Supreme Court in Briggs said, “Assuming a sufficiency of evidence .... the conviction could be upheld for first degree murder and armed robbery. This would preclude any double jeopardy problems.”
It is the phrase “assuming a sufficiency of evidence” upon which I part company with the majority opinion. This statement by the Court merely states an hypothesis upon which a dual conviction could stand. In the absence of proof to transform this hypothesis into a premise, the statement would not apply to a particular case.
In this case there is no evidence upon which to base the conclusion reached by the majority opinion.
In Black v. State, 524 S.W.2d 913 (Tenn.1975), our Supreme Court held a conviction for armed robbery and a conviction for assault with intent to commit murder in the second degree could stand. This was allowed because the same evidence was not required to prove the armed robbery as was required to prove the assault.
*441If the evidence in this case were in the same stance as was the evidence in Black, I would agree with the majority. However, that is not the case.
The state did not prove premeditation to support a first degree murder conviction. The state proved the killing occurred during the commission of an armed robbery. The proof of this supplied the premeditation element to support a conviction for murder in the first degree. Without such evidence the crime of murder in the first degree would not have been proved. Therefore, the same evidence which proved the armed robbery was necessary to prove the murder, and thus to allow both convictions would violate the double jeopardy provisions.
The mere indictment for common law murder rather than felony-murder is not controlling on the issue. The state may show a felony-murder under a common law form of indictment to prove the murder. Black, supra. This is what was done in this case. The double jeopardy prohibition is based upon evidence in the case. It is not based upon the manner in which the state seeks to proceed.
I would hold the conviction for armed robbery in this case cannot stand because it violates the double jeopardy clause.