Plaintiff in error was indicted and tried for murder in the first degree and convicted of manslaughter. On writ of error to this court the judgment was reversed because of an erroneous charge. Patrick v. State, 117 Fla. 432, 158 So, 101. A new trial resulted in a second conviction of manslaughter and a sentence to hard labor for ten years in the State penitentiary. The latter judgment is here for review. *Page 706
On second writ of error it is contended that the evidence is insufficient to support the verdict and judgment, that the court erred in refusing to permit certain evidence proffered by the defendant to go to the jury, that error was committed in denying the defendant the closing argument to the jury, that error was committed in the refusal of the court to exclude remarks of the State's attorney made in the presence of the jury, and that the court's charge in reference to premeditation was erroneous.
At the trial the State's theory of the case was that the defendant shot Lee Evans, the deceased, through the head and murdered him for the purpose of robbery. The defense was that the deceased killed himself and that he (defendant) was present by prearrangement to hide the evidence of suicide in order that Evans' wife might collect his insurance.
The evidence was all circumstantial, but on the issue thus drawn we find it sufficient to support the verdict and judgment. Two juries have convicted the defendant of manslaughter and both have been approved by the trial court. We, therefore, decline to disturb their finding on this point.
The testimony excluded from the jury had reference to alleged threats of suicide by Evans ten years or longer prior to his death. They were not connected with any recent threats of such conduct on his part and were entirely too remote to be pertinent in this case. No error was committed in excluding them.
The error charged in denying the defendant the right to the closing argument is predicated on Section 8386, Compiled General Laws of 1927, which gives the defendant the right to the closing argument when he offers no evidence but his own. *Page 707
At the trial of this case other evidence was offered than defendant's and was later stricken. Counsel are in disagreement as to whether all such evidence was stricken, but the record tends to support the State's contention. Even if the fact that it was offered did not remove the bar of the statute we find no reason to reverse the court below on this point.
Other assignments have been examined and under different circumstances they would be material, but on the showing disclosed by the record in this case no reversible error is shown to have been committed, so the judgment below is reaffirmed on rehearing.
ELLIS, C.J., and WHITFIELD and BROWN, J.J., concur.
BUFORD and DAVIS, J.J., dissent.