Opinion
February 22, 1952.
Appeal from the Circuit Court for Hernando County, F.R. Hocker, J.
Henson Berry, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
Appellant was tried and convicted for murder in the first degree and sentenced to be electrocuted. The deceased was a purported deputy sheriff and was searching the private dwelling and curtilage of appellant and his brother in the night time without a search warrant when he was killed.
The errors relied on for reversal go to the sufficiency of the evidence to support the verdict, error in giving and refusing certain charges, error in admitting evidence of the acts of appellant and deceased before the murder and the refusal of appellant's motion for new trial.
We do not think there is any theory on which a judgment of murder in the first degree can stand. The deceased was not a duly elected or appointed deputy sheriff or police officer at the time of the tragedy, he had no warrant or authority to search the premises. These and certain irregularities that took place during the trial and that should not have been permitted prevent affirmance of the judgment appealed from. Appellant admitted the killing but if his account of it was true, which is not denied, it would not justify a verdict greater than manslaughter.
The cases of Presley v. State, 75 Fla. 434, 78 So. 532, L.R.A. 1918D, 975 and Holton v. State, 87 Fla. 65, 99 So. 244 are in many respects analogous to the case at bar. The judgment is accordingly reversed with directions to the trial court to enter a judgment and sentence for manslaughter.
Reversed with directions.
SEBRING, C.J., TERRELL, CHAPMAN, THOMAS and HOBSON, JJ., and JONES, Associate Justice, concur.
ROBERTS, J., dissents.
I think there is sufficient evidence to support the verdict.