The appellant was originally convicted of murder in the first degree and upon appeal the judgment was reversed. McRane v. State, 142 Fla. 240, 194 So. 632. Upon retrial he was found guilty of murder in the second degree, and again appealed. After close study of the record we hold the view that the evidence did not prove murder in the second degree but did establish defendant's guilt of manslaughter resulting from the use by him of excessive force in *Page 23 making an arrest. See 26 Am. Jur. "Homicide," Sec. 229.
Therefore, by virtue of Section 310 of the Criminal Procedure Act the judgment is reversed with directions to the circuit court to enter one for the crime of manslaughter and pass sentence accordingly.
Reversed.
BROWN, C. J., WHITFIELD, BUFORD and THOMAS, J. J., concur.
TERRELL, CHAPMAN and ADAMS, J. J., dissent.