(dissenting).
Clearly the evidence establishes that a homicide occurred, but a homicide is not first degree murder unless the defendant shot the victim with the intention of killing him. I submit that the evidence is wholly insufficient to establish that the defendant shot the victim with that intent. The Court summarizes the evidence against the defendant in the following paragraph:
The evidence presented by the State’s expert witnesses regarding the distance of the murder weapon from the victim’s forehead substantiated the State’s theory that the gun was outside the reach of the victim. In addition, the jury could infer that the defendant intentionally killed Croasdale based on the defendant’s disposing of the body in a remote area, taking Croasdale’s van and other property, and assuming Croasdale’s identity in Las Vegas and Portland. Based on all the evidence, the jury could have reasonably inferred that the defendant intentionally or knowingly killed Croasdale to acquire his property and to assume his identity, thereby avoiding the possibility of being apprehended and returned to Arizona to face probation revocation proceedings.
From this evidence, the jury could only speculate that the defendant intended to kill the victim. The evidence showing that defendant disposed of the body in a remote area, took the van and other property, and assumed the victim’s identity, shows a consciousness of guilt — but a consciousness of guilt consistent with any of several other degrees of homicide. To argue that the State could prove the requisite intent of the crime charged beyond a reasonable doubt on this evidence and whatever other evidence there is in the record (which is virtually none) makes a mockery of the principle that each element of a crime must be proved beyond a reasonable doubt.
The only direct evidence of the shooting came from the defendant who testified that the gun discharged while he and the victim struggled for it after the victim attacked the defendant. Of course, the jury could believe all or part of that testimony. However, that part of the defendant’s testimony most favorable to the verdict simply established that the gun was just beyond the victim’s immediate grasp at the time it discharged, a fact consistent with the testimony of the medical examiner. The medical examiner testified that the gun was eighteen inches or more from the defendant when it fired. To conclude that the defendant intended to kill the victim from that evidence is sheer speculation. Furthermore, the angle of the bullet’s entry was altogether nonprobative of an intentional killing.
The argument that the jury could reach an inference of an intentional killing based on the subsequent acts of the defendant’s 1) disposing of the body in a remote area, 2) taking the victim’s van and other property, and 3) assuming his identity in Las Vegas and Portland, is not an inference founded in logic but in speculation. One who has committed manslaughter, as well as one who has violated the terms of his parole, is highly likely to act in such a manner. I submit a reasonable person simply could not find beyond a reasonable doubt that the homicide was murder rather than manslaughter. In such a case, our criminal code mandates a finding of the lesser offense. U.C.A., 1953, § 77-17-1. See State v. Golladay, 78 Wash.2d 121, 129-30, 470 P.2d 191, 197 (1970), overruled on other grounds, State v. Arndt, 87 *1316Wash.2d 374, 378, 553 P.2d 1328, 1330-31 (1976).
Finally, I submit that the trial court erred in the admission of some of the prior criminal acts of the defendant and that that erroneously admitted evidence may have induced the jury to make the finding it did.
In my view, the requirement of proof beyond a reasonable doubt has been reduced to a mere formality in this case. Perhaps the defendant committed first degree murder — one may so speculate. But the evidence does not meet the requisite legal standards to prove it.