(dissenting):
I am unable to agree with the majority conclusion that the evidence before the jury was so insufficient as to premeditation as to require the trial court to direct a judgment of acquittal to the first de*194gree murder charge at the close of the Government’s case. Of course, premeditation is an essential element of the Government’s evidence in establishing a first degree murder charge, but a knowledgeable, experienced trial judge and a carefully selected jury acting under instructions unchallenged as to their adequacy or propriety found that the evidence before them established premeditation beyond a reasonable doubt. Despite this record, however, the majority exercises a frightening power by setting aside the jury’s verdict on this important issue, and without any firsthand knowledge of the relative credibility to be afforded the several Government witnesses, as that credibility can only be determined by actual observation in the courtroom.
What was the evidence on the premeditation issue that was so convincing to the trial judge and the jury but which is held to be so unconvincing and inadequate by the majority?
The Government’s case clearly showed a vicious attack on Mrs. Mary Southerland, and as the majority opinion frankly describes it, “a savage killing” of her 10 year old grandson Phillip Richardson. Briefly confining my citations from the evidence to those aspects supporting the finding of the existence of premeditation, it is to be noted that appellant visited the home of Mrs. Mary Southerland and her grandson on the evening of March 24, 1966. Despite some testimony relating to a wine purchase and its drinking there is no claim or evidence of intoxication of either appellant or Mrs. Southerland. At some point Phillip went upstairs and remained there. Conversation in the Southerland living room between the two was casual and labored to the point where Mrs. Southerland repeatedly complained of being tired, but appellant remained in the residence, although he kept repeatedly walking to and looking out of the window (Tr. 44). At 9 p. m. and again at 9:30 p. m. appellant manifested some action as if about to depart but on each occasion he “looked out” of the window, “looked up and down the street” and returned to again sit down (Tr. 44-45). Again at twenty minutes to ten after Mrs. Southerland had repeated her statement of feeling tired, the appellant “kept asking [her] over and over each time he would be walking to the window ‘What time did you say George gets home?’,” referring to Mrs. Southerland’s husband. Through this sequence appellant repeatedly asked Mrs. Southerland whether her daughter would be coming to the residence. Her testimony continues:
At 20 minutes to 11 he got up again and he looked up at the clock. He said it’s 20 minutes to 11. I said it most certainly is, Mr. James, and I have to go to bed. So he says, yes, I have got to get home, too.
He walked over to the window and leaned down on the windowsill looking up and down the street. It seemed like such a long time. I can’t judge because of my being tired and bored. It probably seemed longer than it was. But I dropped my head down in my hand like that. * * *
I raised my hand up and I reached over on the table. * * * I don’t recall whether I was going to pick up the cigarettes or the paper with the crossword puzzle, but when I did reach over, something struck me on the side. (Emphasis supplied.)
(Tr. 46-47.)
Mrs. Southerland thereafter recounted that her glasses came off, that she was still being struck and that she next remembered being on the floor, but unable to defend herself, she “just lay still” (Tr. 48) and as she was lying on the floor she heard what she described as “quick footsteps and for a short distance.” (Tr. 49.) During this entire period appellant was the only other person in the room (Tr. 47-49). She dragged herself to a hallway leading to a utility room and managed to open a door. As she dragged herself out of that door she heard her grandson Phillip “screech” in a manner which she had never heard before. (Tr. 51.) She testified “I don’t *195know whether he was saying ‘no’ or ‘oh’. It was an ‘oh’ sound.” (Tr. 51.) At this point she screamed, and may have lost consciousness. She next recalled attempting to pull herself to her feet, and as she did so she was struck again at least twice before she again lost consciousness. Two neighbors, attracted by the screams saw a man, subsequently identified as appellant, striking Mrs. Southerland with a hammer after she had reached the yard of her residence. A neighbor identified appellant leaving Mrs. Southerland’s house after the assault and carrying a hammer.
A detective of the Washington Police Department testified that when he arrived upon the scene, Mrs. Southerland was “covered with blood from head to foot.” (Tr. 116.) He testified that the Southerland living room showed signs of a scuffle with blood on the floor, furniture and walls. He proceeded to the second floor, to a bedroom with a light burning, where he found the body of 10 year old Phillip Richardson. “He was covered with blood. There was blood all over the bed, the walls, the floor, just all over the place.” (Tr. 116.) A short time thereafter appellant was arrested in his own home, this officer observing “little specks” of blood on appellant’s chin although he was “very calm.” The next day the police officer in executing a search warrant at appellant’s home recovered from a hall closet a hammer having on it a “substance which I thought to be blood.” 1
I have omitted from this review of the evidence most of the gory detail, enumerating only the basic material which was before the trial judge when the Government rested its case in chief. I do feel that this evidence justified and required the trial judge to submit this evidence to the jury for consideration under the first degree murder charge in the indictment. The trial judge is required to consider the evidence at this point, including all legit-mate and logical inferences to be drawn therefrom in the light most favorable to the Government. “In the Curley opinion2 we said that in deciding whether to submit a case to the jury the trial judge must consider whether reasonable jurymen must necessarily have a reasonable doubt or whether, on the other hand, the evidence was such that a reasonable mind might fairly have a reasonable doubt or might not have such doubt. We further said that for the jury to convict, it must be persuaded of the defendant’s guilt beyond a reasonable doubt, and our holding emphasized that the standard for the jury is different from what the trial court must consider in deciding whether the case may go to the jury.” (Last emphasis supplied.) Crawford v. United States, 126 U.S.App. D.C. 156, 158, 375 F.2d 332, 334 (1967). In Curley we succinctly summarized the law thus: “It is not disputed that upon a motion for a directed verdict, the judge must assume the truth of the Government’s evidence and give the Government benefit of all legitimate inferences to be drawn therefrom.” Curley, supra, 81 U.S.App.D.C. at 392, 160 F.2d at 232.
The majority opinion, however, turns its back on Crawford and Curley and cites our fairly recent opinion in Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967) as somehow defining the factors and elements which may or may not establish premeditation. By the utilization of “homespun terminology” constituting dramatic colloquialisms in popular use but of questionable legal significance the court relied heavily upon the phrase “in cold blood” as describing the nature of first degree murder. This discussion therein related, of course, to our present problem of the evidence nec*196essary to establish premeditation. The phrase was there used to distinguish a premeditated homicide from one “committed on impulse or in the sudden heat of passion.” We went so far as to suggest to trial judges that “[t]he analysis of the jury will be illuminated, however, if it is first advised that a typical case of first degree murder is the murder in cold blood; that murder committed on impulse or in sudden passion is murder in the second degree * * 127 U.S. App.D.C. at 188, 382 F.2d at 137.
I am unable to fathom the reasoning of the majority that concludes as a matter of law that this was a murder “committed on impulse or in sudden passion.” The Government’s evidence, viewed in the light most favorable to it, established that appellant came to Mrs. Southerland’s home (Tr. 37, 58); that he left to get and returned with some wine (Tr. 37, 58); that the deceased went upstairs (Tr. 43); that appellant’s conversation was slow and Mrs. Southerland bore the burden of carrying on the conversation, despite her repeated reminders to him that she was tired (Tr. 44); that appellant “kept getting up, walking back and forth to the window” and “kept asking [her] over and over each time he would be walking to the window” what time her husband would return from work and if her daughter would visit her (Tr. 44, 46). It established through her testimony that she started to receive blows at a time when appellant was the only other person in the room, which blows only stopped when she ceased to move (Tr. 47-49). It established that after she managed to grope her way out of the back door of the house, she heard her grandson cry out “no” or “oh” in a manner which she had never heard before; that the next thing she remembered was trying to pull herself up by using a post in the backyard, at which time she again began to receive blows (Tr. 50-53). I believe this evidence clearly required the learned trial judge to deny the request for directed verdict. I further believe that it not only negatived completely any suggestion of an impulsive or sudden passion killing but affirmatively supported and justified a finding both of deliberation and premeditation on the jury’s part. I would accordingly affirm the conviction of first degree murder.
The court’s action today results in a situation which if legally sound, is nevertheless difficult for laymen to understand. The appellant has been found guilty of second degree murder not by a jury, because the jury by its vote rejected the second degree charge, but by a panel of this court. He is to be sentenced then for the commission of a felony for which he has not been afforded a jury trial, upon a verdict of guilty rendered by judges who have never seen or heard a single witness in the case.
. There is an unfortunate void in the record as to the stains on the hammer and other items of clothing which were thought to be blood. Whether laboratory examinations of these objects were made and the results, if any, of the examinations was not the subject of any testimony offered at the trial.
. Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). (Footnote not in original.)