
    Isaac Faust, Plaintiff in Error, v. The State of Florida, Defendant in Error.
    
    Opinion Filed December 13, 1919
    Where the evidence shows an unlawful homicide, but does not show the Commission of murder in either the first or the second degree, ia judgment upon a verdict of murder in the second degree will be reversed.
    A Writ of Error to the Circuit Court for Volusia County; Jas. W. Perkins, Judge.
    
      Reversed.
    
      Stewart & Stewart and James E. Alexander, for Plaintiff in Error;
    
      Van C. Swearinger, Attorney General, and D. Stuart Gillis, Assistant, for the State.
   Whitfield, J.

— Faust was indicted for murder in the first degree and convicted of murder in the second degree. A writ of error was taken by the defendant.

The evidence shows -that the deceased and the defendant had a misunderstanding of some kind; that on the morning of the homicide the deceased was in the road near the house of -the defendant going to his work, when words of differences passed between them; that deceased returned to his home, got his gun and was again going along the road towards defendant’s house when he was fatally shot by the defendant before he got opposite defendant’s house and before deceased attempted to shoot, the defendant having gone into his house and gotten his gun as the deceased returned.

While the evidence may establish an unlawful homicide, a premeditated design of the defendant to effect the death of the deceased does not appear, as the verdict indicates; and the facts do not clearly show that the defendant shot deceased under the influence of “a depraved mind regardless of human life,” which is an element of murder in the second degree. A charge given that the jury should determine from the evidence,, “beyond a reasonable doubt” whether the defendant used all reasonable means in his power, consistent with hi's own safety, to avoid the danger and avert the necessity of killing the deceased, was calculated to mislead the jury under the charges given and the evidence adduced.

Reversed.

Browne, C. J., and Taylor and West, J. J., concur.

Ellis, J., dissents.  