The indictment in this case was for murder in the first degree. Upon petition by the State Attorney alleging its destruction by fire there was an order re-establishing the indictment. The trial upon this indictment as re-established, on a plea of not guilty thereon, resulted in a conviction of murder in the second degree. Writ of error has been taken to review the judgment.
The order re-establishing the indictment adjudged "that the copy of said indictment attached to said petition be and the same is hereby adjudged to be a substantial copy of said original destroyed indictment and that said original destroyed indictment be and the same is hereby re-established."
The judgment is reversed on authority of Hall v. State,88 Fla. 239, 101 South. Rep. 847.
WEST, C. J., AND WHITFIELD, ELLIS, BROWNE, TERRELL AND STRUM, J. J., concur. *Page 378