(concurring in reversal). I concur with my Brother Swainson, because I am persuaded that had the jury returned a verdict of first-degree murder on the evidence contained in this record, we would have no choice but to set it aside as wholly unsupported.
This I believe is the test the trial judge should have used in ruling on the motion to dismiss the charge of first-degree murder.
I can take no solace (as my Brother T. E. Brennan apparently does) from the fact that this jury returned a verdict of second-degree murder. They should not have been obliged to consider a charge of first-degree murder on such evidence.
T. E. Brennan, J.(for affirmance). The defendant was convicted of second-degree murder. The issue before us is whether there was any evidence introduced at the trial from which the jury could have concluded that the defendant was guilty of first-degree murder.
In my view, the dissenting opinion in the Court of Appeals and the majority opinion in this Court both proceed to analyze and weigh the evidence of premeditation. They conclude that there was no evidence of premeditation but they arrive at that conclusion only by showing why the evidence of premeditation should not have been believed.
*729My Brother refers to the statement "you’d better come and get this mother fucker before I kill him” as an equivocal statement. If it is equivocal, then it is capable of two or more meanings or interpretations, and it hardly follows that an equivocal statement can be "clearly not evidence of premeditation.” It is for the jury to determine the intended meaning of an equivocal statement. The only way an appellate court can conclude that an equivocal statement is not evidence is to demonstrate that none of its possible interpretations would support the conclusion claimed.
The dissent in the Court below analyzing the crucial statement emphasizes its equivocal nature. Thus, "[i]f anything, the statement would appear to indicate an unwillingness to harm Kirk * * * .” And, further, "[t]he language used by Watkins in referring to Larry Kirk does not necessarily indicate animosity. The term 'motherfucker’ is used by some men in their everyday speech. * * * it does not appear to have been used in a pejorative sense. ” The word pejorative is an adjective meaning disparaging. It is descriptive of the tone, meaning, or intention with which words are used. Discussion and analysis of the intention with which words are used in a murder case is. the function of the jury.
In my opinion, the meaning of the phrase used was for the jury and I do not believe that this Court can or indeed has ruled out the possibility that the words could have conveyed animosity, could have been used in a pejorative sense, or could have evidenced premeditation.
Further, it appears that other evidence of premeditation was in the trial record. This included the testimony of the defendant to the effect that he went to the kitchen and picked up the knife *730which ultimately became the murder weapon. The victim was in the living room, according to the defendant, and it was at least a possibility that the jury could have concluded that the defendant’s movements were consistent with a pre-formed intention to inflict the injury which resulted in the death of Kirk.
Still another element, proper for the jury’s consideration, was the defendant’s initial story concerning the unidentified intruder and his later recanting of that story. Moreover, the jury was entitled to consider the reasonableness and credibility of the defendant’s account of the homicide.
In this analysis, I have tried to avoid expressing a conclusion upon the evidence. Indeed, the totality of the evidence suggests that the jury’s verdict was eminently correct, and the analysis of the majority, as well as the dissent below, came to the same conclusion. But I perceive it to be a mischief that an appellate court should reverse a proper verdict for the very reason that it agrees with the jurors.
Adams and Williams, JJ., concurred with T. E. Brennan, J. Black, J., did not sit in this case.