(dissenting).
I respectfully dissent, and concur in the dissenting opinion of Mr. Justice Brock.
In my view the evidence is insufficient to warrant a finding of first degree murder. I find no proof of premeditation. The encounter between the petitioner and the deceased came about as a coincidence; the deceased, having met petitioner by chance, followed him to his pickup truck with fists clenched and acting in a menacing manner; as a result of the prior differences between the parties and under the stress, excitement and pressure of a passing moment, the fatal shot was fired.
As pointed out by Justice Brock, once the fact of killing has been established, the law presumes it to be murder in the second degree, Witt v. State, 46 Tenn. 5 (1868); Covey v. State, 504 S.W.2d 387 (Tenn.Cr.App.1973), and the burden is on the State to prove premeditation or some other ingredient to establish that the killing constituted murder in the first degree. Hornsby v. State, 479 S.W.2d 653, (Tenn.Cr.App.1971); Shanklin v. State, 491 S.W.2d 97 (Tenn.Cr.App.1972).
That burden has not been met. This is a classic ease of second degree murder.
I deplore the tendency of our courts to apply this praiseworthy presumption in order to raise the degree of murder, but to ignore it when its application would operate to reduce the degree.
The record in this case reveals that the jury, after deliberating for a time, returned into open court and reported that it had not reached a verdict. In response to a question by the trial judge the foreman reported “I don’t think we have had time, sir.”
Thereupon, and without further ado the trial judge gave the charge as set out verbatim in Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955).
After the jury had been given this “dynamite” charge it retired and, in due course, returned with a verdict of murder in the first degree.
We examined the Allen-Simmons charge in Kersey v. State, 525 S.W.2d 139 (Tenn.1975), released June 16, 1975. In reversing the conviction in Kersey, we said:
The right of trial by jury may not be impaired or encumbered with conditions which, in their practical operation, may embarrass or violate the free and full enjoyment of the right. Neely v. State, 63 Tenn. 174 (1874).
In our view the Allen charge and the Allen-Simmons charge operate to embarrass, impair and violate the constitutional right of trial by jury. Any undue intrusion by the trial judge into this exclusive province of the jury, is an error of the first magnitude. We recognize that the trial judge has a legitimate concern in the administration of justice and that he labors under a duty to lend guidance to the jury through instructions as to the governing principles of the law. However, when the effort to secure a verdict reaches the point that a single juror may be coerced into surrendering views conscientiously entertained, the jury’s province is invaded and the requirement of unanimity is diluted. We view these charges as being tantamount to a judicially mandated majority verdict which is impermissible under Tennessee law.
Moreover, there is an inherent inconsistency in these charges in that the dissenters are urged to reconsider their verdict, and simultaneously are reminded to make their decisions based upon their own convictions which they are cautioned not to sacrifice. They ask the dissenters to consider shifting their opinions, because the majority is of a different per*31suasion. We find no merit to any suggestion that might necessarily makes right.
In deference to the trial judge it should be pointed out that this case was tried before we released our opinion in Kersey; however, we reversed Kersey’s conviction because of the “dynamite” charge and without prior admonition to the Bench and Bar.
It is true that no assignment of error challenged this charge; however, this Court may note plain error. In Manning v. State, 500 S.W.2d 913, 914 (Tenn.1973), this Court held that appellate courts in the public interest, may, sua sponte note errors to which no exception has been taken if errors are obvious or if they seriously affect fairness, integrity or public reputation of judicial proceedings.
This is such an error.
I would reverse.