¶1concurring specially.
¶2“A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external, circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.” Code § 26-1101.
¶3There is no evidence in this case of a deliberate intention to kill; i.e., there is no evidence of express malice. Nor is there any evidence of an abandoned and malignant heart; i.e., there is no evidence of implied malice.
¶4I am supported in this conclusion by the trial judge’s finding that “there exists no evidence in the record of any intent to kill or any evidence that the defendant intentionally discharged thé weapon...” except the testimony of Kelly Fite. Fite’s testimony that the gun would not fire accidentally by being dropped or hit does not prove intent to kill beyond a reasonable doubt.
¶5I therefore dissent to Division 7 of the majority decision but join the other divisions and concur in the judgment.
¶6I am authorized to state that Chief Justice Undercofler, and Justice Clarke, joins in this special concurrence.