Mr. Justice ELLIS and the writer hereof dissented from the majority opinion filed in this case. The Court ordered a rehearing and heard at the bar of this court argument of able counsel for the respective parties, based on the record presented. It is to be observed that the trouble with the members of the Court in reaching a decision is based on a question of fact rather than law. I have carefully reviewed the entire record and cannot conscientiously reach or agree to the majority opinion filed on rehearing. I take the position that the burden of proof rests on the prosecution to establish each material allegation of the indictment and this burden is required to be established or proven beyond a reasonable doubt before the jury is authorized to find a verdict of guilty. See Campbell v. State, 92 Fla. 775,109 So. 809; Folks v. State, 85 Fla. 238, 95 So. 619. It is likewise elementary or fundamental that the law presumes that a person *Page 455 charged with crime is innocent and the presumption thereof accompanies the defendant in each step of the case from the very beginning until overcome by competent testimony adduced on the part of the State showing the guilt of the defendant beyond a reasonable doubt. See Baggett v. State, 99 Fla. 252, 114 So. 236; Roe v. State, 96 Fla. 723, 119 So. 118; Campbell v. State,92 Fla. 775, 109 So. 809; Carnley v. State, 82 Fla. 282, 89 So. 808.
I have examined the record and fail to find any testimony supporting a motive on the part of the defendant to commit the crime. It is possible that just criticism can be made of the conduct of the defendant in not making known the death of his wife in the early part of the night or shortly after she shot herself, but in this he violated no law. While such conduct may be contrary to the habits and customs of our people, it is notmala in se and undue emphasis has been placed on this dereliction on the part of the prosecution. The testimony of Murray Jackson to the effect that the deceased sometime prior to her death tried to drown herself by jumping into a lake, when she was rescued from death by drowning by the defendant here; likewise, the testimony of Dr. H.M. Strickland to the effect that the deceased told him, "that she was going to leave (meaning her) home or kill kerself." It appears that the defendant supplied the motive for the deceased's death after the prosecution had utterly failed. There is about the same evidence against the defendant's mother as the defendant and the trial court directed a verdict in her behalf. The defendant and his mother were jointly indicted for the death of Mrs. Dewey. The motive for the crime became important and material, when the direct or circumstantial evidence failed to make out a satisfactory case. The evidence here is entirely circumstantial. *Page 456
In Vol. 14 American Jurisprudence, par. 27, page 786, it is said:
"27. MOTIVE. In Criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act, or as the moving power which impels to action for a definite result. It is distinguishable from intent the purpose of which is to use a particular means to effect a certain result. Motive is an inferential fact and may be inferred not merely from the attendant circumstances, but, in conjunction with these, from all previous occurrences having reference to, and connected with, the commission of the offense. It is not an essential element of crime or indispensable to a conviction. It is important only when the evidence, direct and circumstantial, fails to make out a satisfactory case, and then only as evidence. A man is not to be acquitted of crime simply because his motive for perpetrating it cannot be discovered."
Charge No. 3 given the jury is, viz.:
"3. The defendant in every criminal case is presumed to be innocent until the State has by competent evidence shown his guilt to the exclusion of and beyond a reasonable doubt, and before this presumption of innocence leaves the defendant, every material allegation of the indictment must be proven by the evidence to the exclusion of and beyond a reasonable doubt, and this presumption of innocence accompanies and abides with the defendant as to each and every material allegation in the indictment, through each stage of the trial, until it has been so met and overcome by the evidence to the exclusion of and beyond a reasonable doubt, and if any one of the material allegations of the indictment is not proven to the exclusion of and beyond a reasonable doubt, you must give him the benefit of such doubt, and acquit him or reduce the grade of the offense *Page 457 as the facts as you find them from the evidence may require. But if you believe from the evidence and to the exclusion of every reasonable doubt that the defendant is guilty of the crime of murder in the first degree as charged in the indictment, or of any offense within such indictment, then you should find the defendant guilty of such offense as the facts as you find them from the evidence may require."
Consideration has been given to the case of Lewis v. State,55 Fla. 53, 45 So. 993, to the effect that this Court in passing upon a single instruction or charge the same should be considered in connection with other charges or instructions bearing upon the same subject. It is a reasonable inference deducible from the above instruction that the jury, when it was deliberating upon a verdict to the effect that if the State failed to establish or prove by competent testimony any of the material allegations of the indictment beyond a reasonable doubt, then it was not its duty to render a verdict of not guilty and acquit the defendant, but the jury had the authority under the instruction, supra, to reduce the grade of the offense as the facts established would justify. This is not the law. See Hart v. State, 92 Fla. 809,110 So. 253; Worster v. State, 82 Fla. 463, 90 So. 188; Franklin v. State, 66 Fla. 213, 63 So. 418. The defendant should have a new trial.
BROWN, J., concurs.