Opinion
No. K-304.
May 15, 1969.
Appeal from the Circuit Court for Duval County, Thomas A. Larkin, J.
Earl Faircloth, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., for appellant.
Louis O. Frost, Jr., Public Defender, Ralph W. Nimmons, Jr., Asst. Public Defender, for appellees.
Appellant seeks review of an order entered by the trial court dismissing an indictment for murder in the first degree. The indictment is predicated upon the operation of the felony-murder rule as it involves the homicide of a police officer by the act of another officer occurring during the course of said officer's efforts to apprehend appellee while the latter and his companion attempted to burglarize a residence that had been "staked out" by the former.
The facts agreed to indicate that neither the appellee nor his accomplice were known to be armed nor did they know of the presence of the officers within the residence. The record facts show that the homicide resulted from the deceased officer's failure to adhere to the prearranged plan when he moved in the darkness in a forbidden direction intended to be "covered" by another officer. The latter, mistakenly believing the deceased to be one of the burglars, fired and mortally wounded his companion.
The trial court held in a well reasoned opinion that under the facts peculiar to the case at bar, the felony-murder rule was inapplicable.
Our consideration of the record, briefs, and oral arguments of the parties has failed to demonstrate that the order now under review is erroneous, and it is therefore
Affirmed.
RAWLS, Acting C.J., and JOHNSON and SPECTOR, JJ., concur.