(dissenting).
I must dissent.
The facts of this homicide case and the law are correctly stated in the majority opinion but it is strongly felt that an erroneous conclusion has been reached.
Here we have a somewhat usual murder case, if murder can ever be said to be usual. In a tavern disagreement one angry man drew a deadly weapon and killed another. This is a serious crime, and is deserving of serious punishment in order to deter others from such *734conduct, but it is not that most serious crime involving the taking of a human life, murder in the first degree.
From the facts of the case it would appear the jury, lower court and the majority here presumed premeditation or inferred it from proof that does not seem to this writer to suggest its existence at the time of the killing. Premeditation may not be presumed, it must be proved. True, the defendant killed the deceased with a deadly weapon following a quarrel. But, from these facts only murder in the second degree may be presumed.
“* * * from the mere fact of killing, the law presumes only murder in the second degree.” Witt v. State, 46 Tenn. 5.
“Where the state proves the commission of a homicide, there arises a presumption of second degree murder. To reduce homicide from second degree murder there must be evidence of justification or mitigation. The burden is on the state to raise the offense to murder in the first degree. Admission of deliberate killing is sufficient so as to raise the offense, as is evidence of killing in an attempt at robbery, or to otherwise gain deceased’s property. The offense is not raised by proof of killing with a deadly weapon. The burden of reducing the offense to manslaughter is on the defendant, but defendant sustains the burden by raising a reasonable doubt in the jury’s mind whether defendant is guilty of second degree murder.” Underhill’s Criminal Evidence, 5th Ed. § 657.
What is the proof in the record that proves premeditation? There is none. On the contrary, there is undisputed proof from which it may plainly be inferred *735that an instant before the shooting there was no plan in the mind of the defendant to kill the victim. Green walked up to the table at which the victim was seated and said simply, “Go home.” It is submitted for logical consideration that these actions and words mitigate against a previously designed plan to kill. If the defendant had acceded to the imperious request to go home, nothing appears in the record to suggest that he would not be alive today. Of course, he had every right not to go home, and for the defendant to become angry enough to kill him for not obeying his dictatorial order he should be subjected to such punishment as the law provides for taking the life of another under such circumstances. He should not, in my judgment, be subjected to the same punishment reserved for the felon who carefully plans to insure his child’s life and then kills it to collect money. Or the depraved killer who lies in wait to slay his victim from ambush. Or the bandit who kills his robbery victim to conceal his guilt of that crime. These are more serious matters than the rash, impulsive, stupid, impetuous act described in the record before us.
True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist. This is a relatively difficult matter to prove. It involves proving the mental state of the killer just prior to the act of killing. The fact that a killing is unexplainable from a reasonable consideration of the facts and circumstances, that it was pointless and useless, that the killer had nothing to gain from his act, that the killing was executed in a particularly bloody manner as in this case by shooting again and again do not constitute facts that tend to prove first degree *736murder; on the contrary, the more irrational and pointless a killing is, the more likely is it to lack the planning and deliberation necessary to constitute premeditation. Juries, and I fear courts, are inclined to let natural prejudices against violence effect their judgment to such an extent that they view a murder in which the victim is left mutilated and butchered after a drunken brawl as a more serious crime than one involving the administration of a not too unpleasant tasting poison to a vexatious spouse in such a manner as to leave a good looking corpse, and a large insurance benefit.
Premeditation should not, as the majority herein seems to do, when their opinion holds that the design or intention to kill need not have pre-existed for any definite time, be treated as synonymous with intent. Intent, unlike premeditation, is also one of the elements of second degree murder and intent must be accompanied by a deliberate preconceived plan to kill in order to raise the degree to the highest level of murder.
“* * * premeditated design denotes pre-existing reflection and deliberation encompassing more than the mere intent to kill.” State v. Keaton, 258 Minn. 359, 104 N.W.2d 650, 86 A.L.R.2d 649.
“There is no presumption of law that a homicide was committed with premeditation, even though malice is proved or presumed by law, but premeditation must be proved beyond a reasonable doubt, either by direct or circumstantial evidence.” Underhill’s Criminal Evidence, 5th Ed. § 643.
Murder in the second degree is all murder other than the precisely defined murder in the first degree. There *737are only some nine ways in which murder in the first degree may be committed, one of them requiring premeditation. All other murders are of the lesser degree. The Supreme Court of Alabama in discussing the difficulty of proving the narrow elements necessary to establish murder in the first degree, other than those committed in connection with a defined felony, said:
“* * * the taking of life must been willful, deliberate, malicious, and premeditated. These must concur and co-exist or, whatever other offense may be committed, this offense of statutory creation is not committed. There is no possible state of facts from which the law presumes their concurrence and co-existence.” Coats v. State, 253 Ala. 290, 45 So.2d 35.
Premeditation may, of course, be inferred from the acts and words of the killer. Nowhere in the record from the point the defendant shook hands with the deceased and told him to forget an argument they had concluded does anything at all appear to indicate the defendant’s state of mind. If he had stood up and announced, “I am going over and kill Snow”; or if he had taken his pistol out and walked over to Snow’s table in a threatening way, these facts would justify the jury in concluding a previously formulated design to kill had taken shape. Instead of such actions or words the circumstances prove without dispute that the defendant walked over and did something that completely dispels the notion that he planned to kill; he told the deceased to leave! Should we go further and infer that the defendant had planned to kill the deceased even if the victim had said, “yes, sir, I am going home,” and had left? Just as in any other case *738involving circumstantial evidence (and this case as far as proof of premeditation goes, rests completely on such proof) every reasonable hypothesis save that tending to prove guilt must be excluded by the jury before they can find the necessary element to have been proved beyond a reasonable doubt. The defendant did not indicate by word or deed that he had determined to kill the deceased if his order had been obeyed. It was his almost infantile, petulant reaction to the deceased’s perfectly valid reaction to his demand that triggered the anger that resulted in this hot blooded, second degree murder.
Although I am in agreement with our Presiding Judge’s opinion in this case in all other respects, I would recommend modification to second degree murder and a sentence of ten years in the penitentiary subject to acceptance by the State.