          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                             JUNE SESSION, 1998

                                                                  FILED
STATE OF TENNESSEE,              )     C.C.A. NO. 02C01-9710-CR-00406
                                 )                          December 21, 1998
      Appellee,                  )
                                 )                                Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
                                 )     SHELBY COUNTY
VS.                              )
                                 )     HON. JOSEPH B. DAILEY
ANTONIO L. SAULSBERRY            )     JUDGE
& FRANKLIN C. HOWARD,            )
                                 )
      Appellants.                )     (First Degree Murder; Aggravated
                                 )     Rob bery)




                     OPINION DISSENTING IN PART



      The eviden ce in th is case would unqu estion ably be sufficient to supp ort a

conviction of Defenda nt Howard for felony murder in the first degree. His guilt of

felony murder would obviously be predicated on his participation in the

aggravated robbery.



      As I understand our law, to convict Howard of premeditated first degree

murder would require proof that he acted with the intent to assist the sh ooter in

the commission of the premeditated and intentional first degree murder of the

victim.   I agree with the majority that Howard cannot escape criminal

respon sibility for premeditated murder by “claiming he did not share the criminal

intent or premeditation with the actual triggerma n.” Our law m andates, ho wever,

that Howard escape criminal responsibility for premeditated murder unless the

State proves beyond a reasonable doub t that Howard did share the sh ooter’s
criminal intent for premeditated and intentional murder. I do not find this pro of in

the record. I also cannot agree that a premeditated murder is a natural and

probable co nsequen ce of an esp ecially aggravated robbery.



      I mus t therefo re resp ectfully dissen t from th e ma jority’s conclusion that the

evidence is sufficient to support Defendant Howard’s conviction of premeditated

first degree mu rder. In all other respec ts, I concur.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE




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