Delmar R. Dopler was convicted of murder in the second degree, and he appeals.
Judgment reversed, and a new trial awarded. Involved on this appeal is the question of the sufficiency of the evidence to sustain the verdict and judgment of murder in the second degree as entered in the Criminal Court of Record of Polk County, Florida. The record discloses that the appellant, Dopler, and family, and the family of Fred Griffin, the deceased, were related. Fred Griffin was killed in the home of appellant Dopler after midnight on the 24th day of November, 1947. The members of the two families had had several drinks, over a period of some three or four hours, prior to the shooting in the Dopler home.
It is not disputed that Fred Griffin, at the time he was killed, was 35 years of age, six feet and three inches tall and weighed approximately 230 pounds, enjoyed good health, and had a reputation of being unreasonable or overbearing when under the influence of whiskey. The appellant, Dopler, at the time of the difficulty, was in bad health — being confined to his bed a considerable portion of the time. He was being treated by a physician for a skin ailment and was 54 years of age. He is shown to be an older man and much smaller than the deceased. The inconclusiveness of the evidence to establish the essentials of the crime of murder in the second degree cannot by this Court be disregarded.
It is established law if, after a full and careful consideration of the entire record, the ends of justice will be best subserved in granting a new trial because of the inconclusiveness of the testimony offered to establish the essential facts necessary to constitute the crime, then, and under these conditions and circumstances, it becomes the duty of this Court to reverse the cause for a new trial. See Lowe v. State, 154 Fla. 730, 19 So.2d 106, and similar cases.
The judgment appealed from is reversed and a new trial awarded.
TERRELL, THOMAS, and BARNS, JJ., concur.
ADAMS, C.J., SEBRING, J., and WHITE, Associate Justice, dissent. *Page 364