In this case the three plaintiffs in error, together with one Leuie Finley were indicted for murder in the first degree, Mack Lewis being charged as principal in the first degree and the other three being charged as principals in the second degree. Severance was had as to Leuie Finley. The other three accused were tried with the result of Mack Lewis being convicted of murder in the first degree with recommendation to mercy, Montie Lewis being convicted of murder in the second degree and Edward S. Lewis being convicted of murder in the third degree, from which judgments of conviction the matter was brought to this Court on writ of error. *Page 208
There were two assignments of error; the first is that the Court erred in charging the jury in regard to the crime of robbery, and the second is that the Court erred in denying defendant's motion for new trial.
Murder is defined under our statute law as follows:
"The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary shall be murder in the first degree, and shall be punishable with death. When perpetrated by any act imminently dangerous, to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, it shall be murder in the second degree, and shall be punished by imprisonment in the State prison for life. When perpetrated without any design to effect death, by a person engaged in the commission of any felony, other than arson, rape, robbery or burglary, it shall be murder in the third degree and shall be punished by imprisonment in the State prison not exceeding twenty years."
The evidence showed that robbery was committed at the time of and as incident to the homicide and it was therefore not reversible error for the Court to define the crime of robbery to the jury. The evidence, when construed in the light of the opinion in the case of Pope v. State, 84 Fla. 428, 94 So. 865, is found sufficient to support the verdict rendered and the judgment is therefore affirmed.
ELLIS, C. J., AND WHITFIELD AND BUFORD, J. J., concur.
STRUM AND BROWN, J. J., dissent in part.
TERRELL, J., not participating. *Page 209