(dissenting). I would reverse because there was insufficient evidence of premeditation and deliberation to justify submitting the issue of first-degree murder1to the jury, and, since we cannot exclude the possibility that the jury’s verdict convicting the defendant of second-degree murder2 was a compromise, the defendant is entitled to a. new trial.
On New Year’s Eve 1969, defendant DeShorn Watkins and Crawford Crowell dropped in on Dora Kirks and one of her sisters at the sister’s home, 2309 Hoyt Street, Muskegon Heights. All four then went next door to a friend’s home. Watkins and Crowell left to buy some beer and returned with two six-packs. Each drank some beer. Around midnight, Watkins, Crowell and Dora Kirks left for Watkins’ home at 2804 Hoyt. On the way they encountered the victim, Larry Kirk, a first cousin of Dora Kirks, and Arnold Penn. After they arrived at the Watkins residence they played some records and the four men finished the beer and drank some whiskey. Everyone danced. Watkins and Larry Kirk began horseplaying, Watkins demonstrating karate moves to Kirk and Kirk in turn attempting to imitate the moves. The sport was good-natured, accompanied by much laughter. Watkins and Kirk entered a bathroom where they were heard talking and, according to Crowell, they were still playing and laughing.
*390At this point, around 4 o’clock in the morning, Dora Kirks and Crowell retired to the bedroom leaving the door slightly ajar or closed. In the meantime Arnold Penn had fallen asleep on the couch in the living room. While Dora Kirks and Crowell engaged in sexual intercourse, Watkins and Larry Kirk returned to the living room. Their voices seemed normal, betraying no anger to either Dora Kirks or Crowell who could hear them through the bedroom door. Ten or twenty minutes3 after Dora Kirks and Crowell entered the bedroom, Watkins pushed open the door and said something to Crowell. At this point the testimony of Dora Kirks and Crowell differs.
Dora Kirks testified that Watkins said to Crowell, “You’d better come and get this motherfucker before I kill him”. A few seconds later Watkins returned to the bedroom and said that he had cut Larry Kirk.
Crowell testified that Watkins upon first appearing at the bedroom door said something to the effect that Larry had been cut or stabbed. A few second later he returned and said something like, “Hey, man, I ain’t playing, come on the guy is hurt”.4
*391Dora Kirks and Crowell dressed and entered the living room where they saw Larry Kirk slumped over one arm of the couch. Arnold Penn was still asleep. Watkins, who was on the phone, had telephoned for an ambulance and asked Crowell to call again. Dora Kirks, faint at the sight of blood, left. After Larry Kirk stopped groaning, Watkins laid him in Penn’s lap and tried to administer mouth-to-mouth or mouth-to-nose resuscitation. Before the police arrived Watkins told Crowell another man had come and fought with Kirk and then fled after stabbing him. Two knives, one with blood on it, were found in the living room. At the trial, the defense was self-defense.
First-degree murder is a statutory offense. It is the common-law offense of murder with an added element — in this case the added element charged is that the murder was a “willful, deliberate and premeditated” killing.5
In Nye v. People (1876), 35 Mich 16, 18, 19, the Michigan Supreme Court rejected a jury instruction that a willful, deliberate design to take life “might be formed an instant before the act”. The Court ruled that, “it is a perversion of terms to apply the term deliberate to any act which is done on a sudden impulse”. In Nye, the homicide occurred in a sudden affray. The victim knocked the defendant Nye down, Nye having, according to most of the witnesses, struck at him first. “Nye then stabbed him with a knife which he had in his pocket.” Nevertheless, the absence of any testimony whatsoever to show that the killing was not a sudden impulse prompted the Supreme Court to rule that there was insufficient evidence to support a verdict of first-degree murder. The Court declared:
*392“In dividing murder into degrees, its common-law qualities are not changed, but (except in special cases) the division is chiefly between cases where the malice aforethought is deliberate and where it is not. It was rightly considered that what is done against life deliberately indicates a much more depraved character and purpose than what is done hastily or without contrivance. But it is a perversion of terms to apply the term deliberate to any act which is done on a sudden impulse.
“In the record before us there is no testimony whatever upon which a verdict of murder in the first degree could properly have been rendered, and the charge given must have misled the jury. That alternative should not have been left open to them.”
It is, thus, clear from Nye that what is done on “sudden impulse” or “hastily” is not done deliberately within the meaning of this statute.6
*393Recently in People v. Morrin (1971), 31 Mich App 301, 329, 330, leave denied 385 Mich 775, we reviewed the Michigan case law concerning the sufficiency of evidence to establish premeditation and deliberation, and observed that time and again the Michigan Supreme Court had reversed convictions in first-degree murder cases, for insufficiency of evidence and that the reversals were in cases where the homicide occurred during an affray whose nature would not permit cool and orderly reflection.7 We said:
“To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a ‘second look.’ ”
The use of a deadly weapon is not alone sufficient evidence of premeditation. See Nye v. People, supra, where, as previously mentioned, the defendant killed the victim with a knife “which he had in his pocket, and which was apparently one calculated to be used as a weapon”.
“Where the use of a deadly weapon has been held to evidence premeditation there were other circumstances showing motive or plan which would make reasonable the inference that the use of the deadly *394weapon, was not a spur-of-the-moment decision, but rather that it was acquired or positioned with the thought beforehand of using it to kill the victim.” People v. Morrin, supra, p. 333.
Recently in People v. Anderson (1968), 70 Cal 2d 15, 26, 27 (73 Cal Rptr 550, 557; 447 P2d 942, 949), the California Supreme Court, after a careful review of the case law, summed up as follows:
“The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing — what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ (People v. Thomas [1945], 25 Cal 2d 880, 898, 900, 901 [156 P2d 7, 14]); (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).
“Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” (Emphasis by the Court.)
*395In Austin v. United States (1967), 127 App DC 180, 188, 189 (382 F2d 129, 137, 139), the United States Court of Appeals for the District of Columbia Circuit held that, where the government’s testimony did not show any motive for killing the victim who had been in the defendant’s company the night of the homicide and there was no showing of prior threats or quarrels from which an inference of premeditation or deliberation might be drawn, even though the victim .had been killed by multiple stab wounds inflicted by a knife the defendant had been carrying with him that night, the government’s evidence was insufficient to warrant submission of the issue of premeditation and deliberation to the jury:
“In homespun terminology, intentional murder is in the first degree if committed in cold blood, and is murder in the second degree if committed on impulse or in the sudden heat of passion. These are the archtypes, that clarify by contrast.”
In the case at bar there was no evidence of Watkins’ actions before the killing which would indicate a premeditated and deliberated plan to kill Larry Kirk. Neither Crowell nor Dora Kirks could say whether Watkins had a knife with him when he first appeared at the bedroom door. Dora Kirks testified that there was insufficient time between Watkins’ first and second appearances at the doorway to allow him to leave the living room to secure a knife from the kitchen. On view of the evidence most favorable to the people, we must assume that Watkins already had a knife at the time he first appeared in the doorway and that within a few seconds he both knifed the victim and reappeared in the doorway.
To show premeditation and deliberation, the people rely entirely on Watkins’ statement to Crowell, *396on first appearing in the doorway, “You’d better come and get this motherfucker before I kill him”. I emphasize that the people do not claim that there is any other evidence from which an inference of deliberation and premeditation conld properly be drawn.
That statement, attributed by Dora Kirks to Watkins, does not evidence an intention, both premeditated and deliberated upon, to kill Larry Kirk. If anything, the statement would appear to indicate an unwillingness to harm Kirk and a desire by Watkins for Crowell’s aid in preventing a killing.
The 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. Just as it cannot be taken as a literal comment on Larry Kirk’s sexual practices, it does not appear to have been used in a pejorative sense.
Both Dora Kirks and Crowell were in agreement that the time lapse between Watkins’ first and second appearances in the doorway, by which time Larry Kirk had been stabbed, was just a few seconds.8
*398Dissent by Levin, J.
There is nothing in this record which would support a finding that when Watkins first appeared in the doorway he had decided to kill Larry Kirk or that in the few seconds interval between his first and second appearances in the doorway, or before his first appearance, he had deliberated and reflected in a cool state of blood upon a decision to kill him. There was, therefore, insufficient evidence to support a conviction of first-degree murder.9
In Morrm, where we found there was insufficient evidence to convict the defendant of first-degree murder, we affirmed his conviction of second-degree murder and remanded for sentencing on that conviction. We said that the jury’s mistaken belief that the record permitted an inference of premeditation and deliberation did not detract from the fact that there was sufficient evidence to support a finding of second-degree murder. We observed, however, that affirming a conviction for the lesser offense was permissible only where the accused person is convicted of the charged offense and it is, therefore, apparent that the verdict was not the product of compromise. In the present case, the defendant Watkins was con*399victed of second-degree mnrder. In such a case the possibility of compromise cannot he excluded and, therefore, the defendant is entitled to a new trial.10
The defendant moved for acquittal upon the completion of the people’s proofs. For reasons already stated, he was entitled to a directed verdict of acquittal of first-degree murder. It does not appear that upon a new trial the people would he able to introduce additional evidence which would he sufficient to support a conviction of first-degree murder. See People v. Baker (1969), 19 Mich App 480, 484. Accordingly, on a retrial the defendant should not he tried for an offense greater than murder in the second degree.
MCLA § 750.316 (Stat Ann 1971 Cum Supp § 28.548).
MCLA § 750.317 (Stat Ann 1954 Rev § 28.549).
Dora Kirks said that the time interval between when she and Crowell entered and left the bedroom was about ten minutes. Crowell said it was “about 15 or 20 minutes”.
Although Crowell did admit he changed his story after he was first interrogated, he said he changed it long before the time of his testimony at trial and, in any event, he did not say that there was any change from the factual version which he first gave the police. He said that in an effort to protect Dora Kirks, so as not to reveal that they were in the bedroom engaged in sexual intercourse when the stabbing took place, when he was first questioned by the police he responded, “that I was sitting in the chair sleeping. And the only reason I said that I was sitting in the chair sleeping, was because I didn’t want them to know that Dora Kirks was upstairs”. He testified further that when the police arrived he thought the victim had been “just cut or something, but after I found out he was dead, that is when I told them the truth, that she was in the bedroom with me”. Thus, while Crowell dissembled when first interrogated, he did not give the police a version of the facts inconsistent with the version of the facts which he gave at the trial.
MCLA § 750.316 (Stat Ann 1971 Cum Supp § 28.548).
The majority speak of a “deliberately formed * * * intent to kill”. (They say: “We rule that the testimony produced at trial would justify a finding by the jury that defendant deliberately formed in Ms mind beforehand the intent to kill the deceased”.)
While this is subject to the interpretation that the requisite intent must be an intent which has been pondered upon, the more likely interpretation is that there is enough to convict a defendant of first-degree murder if it is established that the intent to kill was actually formed, as distinguished from an intent which is implied.
In every case of first-degree murder the intent to kill must be actual or, as was sometimes said in the older cases, “express”. But every case of actual or express intent to kill is not a ease of first-degree murder. To make it first-degree murder the actual or express intent must be premeditated and deliberated upon; “deliberate”, as used in this context, means not merely an intended consequence but also an intended consequence which has been pondered and thought over while the actor is in an emotional state which permits true reflection on the enormity of the crime contemplated. The additional punishment for first-degree murder is reserved for a ease where the evidence shows not only that the defendant actually intended to kill the vietim but additionally that he refleeted on that decision and, nevertheless, proceeded to murder the vietim in cold blood.
The suggestion that in any case where the jury finds there is a “deliberately formed intent to kill” it may find the defendant guilty of first-degree murder is subject to the erroneous interpretation that the jury should find the defendant guilty of first-degree murder whenever it finds actual intent to kill and that second-degree murder is reserved only for those cases where, although there is no actual intent *393to kill, intent to kill is implied. (“The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. The common-law felony-murder rule is [another] example of implied intent.” People v. Morrin [1971], 31 Mich App 301, 311.)
See People v. Morrin (1971), 31 Mich App 301, 331, fn 47.
The time interval between Watkins’ first and second appearances at the door of the bedroom was seconds, not minutes. The majority opinion quotes the testimony of Dora Kirks as follows:
“ ‘Q. And how long before he came back in again?
“ ‘A. It wasn’t that long.
“ ‘Q. How long was it?
“ ‘A. Just a few minutes. He just went back out and he came back in again.’
“She later testified that it was seconds between the first time and the second time that defendant came to the bedroom.”
I recognize that when a witness says one thing one time and something else another time the jury ordinarily is given the choice of believing one statement or the other. This is not such a case as it is apparent that Dora Kirks misspoke herself when she said “minutes” not “seconds.” The very next question after her answer, “Just a few minutes. He just went back out and he came back in again,” was the following:
“Q. Was it a matter of seconds or a matter of minutes?
“A. Seconds.
*397“Q. Seconds?
“A. Yes.
“Q. So that it was just time enough for him to go back in the living room for a few seconds, and then return?
“A. Yes.”
A few questions later she was asked:
“Q. Was there time for DeShorn Watkins to have gone througli the living room, across the living room, through the dining room, and into the kitchen to get a knife?
“A. I wouldn’t know, I don’t know.
“Q. You can’t tell us whether there was enough time for that or not?
“A. When he came in and went back out?
“Q. Yes.
“A. No.
“Q. There wasn’t time enough for that?
“A. I don’t think so. It wasn’t that long.”
A few pages later:
“Q. All right. And it was just a matter of seconds between the time that DeShorn Watkins first came in the bedroom, and the time he returned?
“A. The second time?
“Q. Yes.
“A. Yes.”
On the following page:
“Q. All right. So he indicated that Larry Kirk was cut the second time he came in the bedroom ?
“A. Yes.
“Q. And this was just a matter of a few seconds between the time he came in the first time, and made a statement, isn’t that right ?
“A. Yes.”
It is manifest that when Dora Kirks said “minutes” she meant “seconds”; this is not a case of two different statements by a witness, but rather a case of a slip of the tongue and of a clarification in the immediately following question.
Crawford Crowell said it was “seconds”:
“Q. All right. Then what happened after that?
“A. After this?
“Q. Yes.
“A. Well, then he left out and he stayed out for a few seconds, and then he came back in — because when he first came in I figured— you know, he was just playing around”.
Later:
“Q. How long was he gone between those two times, Mr. Crowell?
“A. Just a few seconds or two, I am not sure, it was not too long.
“Q. Was it a matter of seconds?
“A. Yes.”
This is a matter of some importance because it indicates that after the defendant Watkins made the statement attributed to him by Dora Kirks (which Crowell said was not made), “You better come and get this motherfucker before I kill him”, he did not have sufficient time to go and get a knife in the kitchen, as *398Dora Kirks herself so testified. This means that Watkins already had a knife at the time he first appeared in the doorway and that, adopting Dora Kirks’ testimony tending to show that the victim had not been stabbed when Watkins first appeared at the door, within a few seconds he both knifed the victim and reappeared in the doorway. •
The parties stipulated that the ease would be submitted solely on the testimony of Dora Kirks and Crawford Crowell. However, even if we consider Watkins’ statement at the preliminary examination that he armed himself with a knife after the victim had first brandished a knife at him, this would not permit an inference that Watkins in so arming himself did so with a formulated intention to kill the victim rather than simply to protect himself. Two knives were found at the scene. There was no evidence of hostility between Watkins and the victim, and no evidence that at some time before the knife entered the victim Watkins had resolved to kill him and that he deliberated and premeditated on that decision.
See People v. Hillman (1956), 140 Cal App 2d 902 (295 P2d 939).
In the following murder eases it was held prejudicial to the defendant to submit the issue of first-degree murder to the jury even though he was convicted of a lesser offense: People v. Marshall (1962), 366 Mich 498, 501 (defendant was charged with first-degree murder and convicted of manslaughter); People v. Hansen (1962), 368 Mich 344, 353 (defendant was charged with first-degree murder and convicted of second-degree murder). Similarly, see Leonard v. People (1962), 149 Colo 360 (369 P2d 54). Cf. Price v. Georgia (1970), 398 US 323 (90 S Ct 1757, 26 L Ed 2d 300).