The record in this case was originally assigned to Mr. Justice CHAPMAN to prepare an opinion and judgment for the Court. He carefully and conscientiously prepared one with which the whole Court in the main agrees but in which the majority cannot concur for the reason that the conclusion reached in that opinion is that the judgment should be reversed and the cause remanded for judgment as for conviction of manslaughter.
The verdict of murder in the first degree was quite evidently the result of prejudice, as there is no evidence in the record to establish the element of premeditated design. Neither is there evidence sufficient to establish the necessary elements of murder in the second degree. Having reached this conclusion, it appears to us that we may no longer consider the verdict as fixing the fact of guilt of some degree of unlawful homicide and thereupon dispose of the case under the provisions of Sec. 310, Criminal Procedure Act by reversing the judgment with directions that judgment be entered adjudging the defendant guilty of a certain lesser degree of unlawful homicide of which the jury might have found the defendant guilty.
It is our view, in the light of what is said above, that unless we can say that we are convinced from the evidence *Page 264 beyond a reasonable doubt that appellant was guilty of some certain degree of unlawful homicide, we should reverse the judgment and remand the cause for further proceedings.
We are not so convinced and, therefore, cannot concur in directing a judgment of guilty of any degree of unlawful homicide in this case.
The cause is reversed with directions that a new trial be had and conducted in the light of the views expressed both herein and in the opinion by Justice CHAPMAN that the evidence presented in this record is insufficient to support a verdict and judgment for murder in the first degree or of murder in the second degree.
So ordered.
TERRELL, BROWN, THOMAS, ADAMS and SEBRING, JJ., concur.
CHAPMAN, J., concurs in part.