(dissenting).
Without belaboring the point I would hold that the senseless killing described in the record and majority opinion resulted from passion and anger that was still influencing the actions of the defendant at the time he shot the deceased. I would reduce to second degree murder.
Was the mind of the defendant at the moment of the slaying so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted the object sought to be accomplished — the end determined upon? This question as set out by the Supreme Court in a number of cases, including Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, must be answered in the affirmative before a killing, presumed otherwise to have been murder in the second degree, can be lawfully held to have been murder in the first degree.
The State’s proof plainly shows that the object sought to be accomplished or the end determined upon by the defendant was to convince the deceased that she should not report him to the police again. When she moved towards the telephone with the announced intention of frustrating the end determined upon by the defendant he reacted in an angry, emotional and heated fashion. He killed where a less impassioned person would not have done so.
For the reasons touched on above I respectfully dissent.