Opinion
Opinion Filed July 25, 1941
An Appeal from the Circuit Court for LaFayette County, Hal W. Adams, Judge.
A.P. Buie, for Appellant;
J. Tom Watson, Attorney General, and Nathan Cockrell, Assistant Attorney General, for Appellee.
The appellant was originally convicted of murder in the first degree and upon appeal the judgment was reversed. McRane v. State, 142 Fla. 240, 194 So. 632. Upon retrial he was found guilty of murder in the second degree, and again appealed. After close study of the record we hold the view that the evidence did not prove murder in the second degree but did establish defendant's guilt of manslaughter resulting from the use by him of excessive force in making an arrest. See 26 Am. Jur. "Homicide," Sec. 229.
Therefore, by virtue of Section 310 of the Criminal Procedure Act the judgment is reversed with directions to the circuit court to enter one for the crime of manslaughter and pass sentence accordingly.
Reversed.
BROWN, C. J., WHITFIELD, BUFORD and THOMAS, J. J., concur.
TERRELL, CHAPMAN and ADAMS, J. J., dissent.
The evidence shows without dispute that at the time of the shooting, defendant was in the act of making a lawful arrest for a crime committed by deceased in the presence of defendant, who was an arresting official. The evidence is equally clear that at the time of the shooting the deceased was committing an assault and battery on defendant with a deadly weapon, to-wit, a shotgun.
Considering the evidence and record together it is made to appear that the homicide was not unlawful.
TERRELL and CHAPMAN, J. J., dissent.