The adoption by a majority of the court of the dissenting opinion prepared by Mr. Justice CHAPMAN and filed herein on December 18th, 1942, must result in the reversal of the judgment of conviction with the holding that the alleged confession of the appellant is either inadmissible in evidence against him or else its probative force was insufficient, when taken with all other evidence, to warrant conviction. Without the confession the evidence, though strongly pointing to appellant's guilt, is not sufficient to sustain a conviction of any degree of unlawful homicide.
The same confession was introduced upon the first trial *Page 95 (See Harrison v. State, 149 Fla. 365, 5 So.2d 703) and all the facts surrounding the confession were shown by the record in that appeal that are shown in that regard on this appeal.
The admission of the confession was assigned as error.
On consideration of that appeal, we found no error in the admission of the proof of confession but reversed the judgment because of the failure of the court to adequately instruct the jury in regard to the consideration of the evidence of confession.
I am of the opinion that the evidence by way of confession was properly admitted by the trial court and that, having been legally admitted, its probative force and effect became a jury question when submitted under proper instructions to the jury. Two fair and impartial juries have considered all of the evidence and returned like verdicts.
As I read and construe the opinion of Mr. Justice CHAPMAN, which now appears about to be adopted by a majority of the Court, the result is the invasion of the province of the jury by substituting the Court's findings as to the probative force and effect of the evidence for that of the jury and thereby allowing a self-confessed twice-convicted murderer to go free.
It appears to me that in fairness to the trial court, it is incumbent upon the Supreme Court to now adjudicate and clearly state whether or not the trial court committed reversible error in admitting the confession in evidence so as to leave no doubt as to how to further proceed.
The record, as a whole, I think, reflects no reversible error.