Opinion
March 2, 1954. On Rehearing May 25, 1954.
Appeal from the Circuit Court, St. Lucie County, A.O. Kanner, J.
Pepper Faircloth, Miami, and Willes Bittan, Fort Pierce, for appellant.
Richard W. Ervin, Atty. Gen., and Mark R. Hawes, Asst. Atty. Gen., for appellee.
We have examined and considered the record in this case in the light of briefs filed and have also, pursuant to subparagraph 2 of Section 924.32, Florida Statutes 1951, F.S.A., reviewed the evidence to determine if the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence does not reveal that the ends of justice require a new trial to be awarded.
Affirmed.
THOMAS, SEBRING, HOBSON and MATHEWS, JJ., concur.
ROBERTS, C.J., and TERRELL and DREW, JJ., dissent.
On Rehearing
Petition for rehearing of this case was granted and after reconsideration, the Court is of the view "that the evidence does not prove the * * * offense of which the defendant [was] found guilty," murder in the first degree, but does establish guilt of murder in the second degree. So, by authority of Section 924.34, Florida Statutes 1951, and F.S.A., the judgment is reversed with directions to enter a judgment for such lesser offense and to pass sentence accordingly.
ROBERTS, C.J., TERRELL, THOMAS, HOBSON and DREW, JJ., concur.
SEBRING and MATHEWS, JJ., dissent.
I do not believe the record here supports a conviction and sentence of murder in the first degree. The cause should be remanded for a sentence for murder in the second degree as provided by Sec. 924.34, F.S.A.