concurring and dissenting.
I join in Parts I and III of the majority opinion. I do not join in Part II, however, because the evidence in the record does not prove that George Wesley Morris premeditated the killing of Jerry Wayne Houck, an acquaintance whom he had known for several months. Premeditation is an element of the offense of first degree murder. Rhodes v. Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989).
The distinction between murder in the first degree and murder in the second degree is well established in Virginia.
Every malicious killing is murder either in the first or second degree — the former if deliberate and premeditated, and the latter if not. Furthermore, there is a prima facie presumption of malice arising from the mere fact of a homicide, but there is no presumption therefrom of deliberation and premeditation. This is merely another way of stating the familiar rule of law that every *581homicide is prima facie murder in the second degree, and that the burden is on the accused to reduce, and on the Commonwealth to elevate, the grade of the offense.
Jacobs v. Commonwealth, 132 Va. 681, 686, 111 S.E. 90, 92 (1922). See also Painter v. Commonwealth, 210 Va. 360, 364, 171 S.E.2d 166, 169-70 (1969). To prove premeditation, the evidence must establish “(1) a killing; (2) a reasoning process antecedent to the act of killing, resulting in the formation of a specific intent to kill; and (3) the performance of that act with malicious intent.” Rhodes v. Commonwealth, 238 Va. at 486, 384 S.E.2d at 98. Each element must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970).
The evidence proved that Morris and the victim were friends who had met several months before the killing. They had visited each other’s home on several occasions. Only Morris and the victim were present in the victim’s home when Morris killed the victim. After Morris was stopped by the police the day following the killing, Morris told the police that he had been drinking beer and playing billiards on Friday night before going to a boat landing where people gathered to drink beer and “hang out.” Morris told police that he saw the victim at the boat landing and began to drink beer with the victim and other friends until both he and victim became very intoxicated.
Morris did not testify at trial. In his statement to the police, Morris gave different versions of the events that occurred after they left the boat landing at 3:00 a.m. Initially, he told the police that the victim allowed him to take the victim’s automobile so that he could use it to visit a friend the next day. He said that the victim gave him the automobile’s keys and left the landing in the company of two girls. Morris said that he fell asleep on a pier after the victim left. When he woke on the pier the next morning at 9:00 a.m., he drove home. Morris claimed that he had tried to call the victim at noon on Saturday but claimed that the telephone had been disconnected.
Upon further questioning, Morris changed his story. He said that he and the victim decided to go to the victim’s home after leaving the boat landing. Although both were intoxicated, Morris stated that he drove the automobile while the victim slept. His first explanation for why he had stabbed Houck was, “I don’t know why I did it. It just happened.” He said he was so intoxicated that he could not remember.
*582He next said that while they were watching a horror movie, the victim went into the bedroom, got onto his bed, and asked Morris to kill him. Morris said that several knives were on the nightstand next to the victim’s bed. Morris said that they both were intoxicated and that he stabbed the victim because the victim asked him to do it.
His final explanation was that while they were drinking and watching television, the victim cursed at him, struck him twice in the side, and went into the bedroom. He said he then followed the victim into his bedroom, pushed him on the bed, grabbed one of the knives from the bedstand next to the bed and stabbed the victim in the throat with a knife.
At trial, a police detective testified that when the police arrived at 10:30 a.m. on Saturday, beer containers were strewn about the living room and the victim’s bedroom. The detective also saw empty food cartons from which Morris and the victim had eaten. The television set was on. A filet knife that had no apparent connection with the incident was found on the nightstand next to the victim’s bed. Based upon his analysis of the crime scene, the detective found no indication of a struggle.
The medical examiner testified that the blood alcohol concentration in the victim’s blood was .07 percent, in the vitreous was .09 percent, and in the urine was .10 percent. He testified that those levels indicated that the blood alcohol concentration in the victim’s blood was higher at an earlier time. He saw no defensive injuries, although the victim had a small abrasion on his hand. The medical examiner further testified that the victim received one stab wound and died within minutes of the stab wound. The wound was immediately incapacitating.
The Commonwealth contends that “fbjased on the evidence of the crime scene and the opinions of the police expert and the medical examiner, the trial judge could have reasonably found that the victim was lying defenseless in bed, possibly asleep, when his throat was cut.” That version of the victim’s death is only a product of speculation. No evidence proved that the victim was asleep. Moreover, the testimony of the officer concerning the scene of the crime and the testimony of the medical examiner are consistent with all the versions of the incident contained in Morris’ statement, i.e. while he was greatly intoxicated (1) he stabbed the victim but could not recall why he did so, (2) he stabbed the victim because the victim asked Morris to kill *583him, and (3) he stabbed the victim because of anger after the victim cursed at him.
Nothing in Morris’ statement or in the physical circumstances makes any one of the possibilities any more likely than the other.
[I]f facts are susceptible to two different interpretations, “one of which is consistent with the innocence of the accused, the jury or the judge trying the case cannot arbitrarily adopt the interpretation which incriminates him.” Instead, “[t]he interpretation more favorable to the accused should be adopted unless it is untenable under all the facts and circumstances of the case.”
Varker v. Commonwealth, 14 Va. App. 445, 447, 417 S.E.2d 7, 8 (1992) (quoting Williams v. Commonwealth, 193 Va. 764, 772, 71 S.E.2d 73, 77 (1952)). Obviously, Morris’ statement that he did not know what happened or why he stabbed the victim does not establish premeditation. His statement that he stabbed the victim at the victim’s request while both were heavily intoxicated also does not establish deliberation and premeditation.
The Commonwealth also asserts that the evidence proved premeditation because Morris could only have obtained from another part of the house the bowie knife that was used to stab the victim. Morris consistently said, however, that the bowie knife was already on the bedstand in the bedroom when he grabbed it and stabbed the victim. Even if Morris’ statement is disregarded, the evidence does not prove the Commonwealth’s hypothesis. Although the victim’s father testified that the knife usually was kept behind the headboard of his bed in another bedroom, that testimony obviously does not prove that Morris went into that bedroom and obtained the knife to kill the victim. No evidence proved that Morris knew where the knife was concealed. No evidence proved that when Morris and the victim arrived at the house the knife was not then on the dresser by the victim’s bed. Indeed, the evidence proved that on the day after the killing, another knife was found on the nightstand next to the victim’s bed. Moreover, it is just as likely as not that the victim, who lived in the house, would have known where the bowie knife was concealed and would have retrieved it from the hiding place. The Commonwealth’s hypothesis that Morris obtained the bowie knife from another room is purely speculative.
“There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value — *584as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden of. . . persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.”
In re Winship, 397 U.S. at 364 (quoting Speiser v. Randall, 357 U.S. 513, 525-26 (1958)).
Because the evidence did not prove beyond a reasonable doubt that any one of the hypotheses of the killing was the version of events that occurred, the evidence failed to prove the element of premeditation and, thus, failed to prove first degree murder. Accordingly, I would reverse the conviction and remand for a new trial.