(concurring in the reversal):
In disposing of the assignment of error considered in subdivision numbered II of the opinion it does not appear to be necessary to overrule any former decisions of this *69court, and I do not concur in that subdivision of the opinion.
The error assigned is the giving of the following charge: “The premeditated design to kill may have existed in the mind of the slayer a month, a week, a day or an hour, or may have been formed a moment before the fatal shot was fired. If you believe from the evidence that the defendant shot and killed Hansel Norman as charged in the indictment, that he killed him without legal justification, or excuse, and that at the time he fired the shot which killed Hansel Norman, he intended to kill him, it would make no difference at what precise time he made up his mind to take Norman’s life. If when he fired the pistol he intended to kill he. is guilty of murder in the first degree, even although he may not have had in his mind any such intention at the time he drew the pistol.”
The first sentence of the charge assumes that a premeditated design is an essential element of murder in the first degree, and states that it may have existed in the mind, of the defendant for a month, a week, a day or an hour or may have been formed a moment before the fatal shot was fired. This proposition does not appear to be erroneous and it is in accordance with decisions of this court. See Carter v. State, 22 Fla. 553; Lovett v. State, 30 Fla. 142, 11 South. Rep. 550; Olds v. State. 44 Fla. 452, 33 South. Rep. 296.
The second sentence of-the charge in effect is, that if the jury believe from the evidence that the defendant shot and killed the deceased, as charged in the indictment, without legal justification or excuse, and that at the time the defendant fired the shot which killed the deceased, the defendant intended to kill the deceased, it would make no difference at what precise time he made up his mind to Mil deceased. In Clifton v. State, 26 Fla., 523, 7 South. *70Rep. 863, where the words “as charged in the indictment” were used in a charge given, this Court held that .“the charge referred to the indictment in its entirety, including of course” the allegation of the offense, “and consequently the charge was not defective” in failing to state an element of the offense. In this case the indictment is for murder in the first degree, and of course it charges the killing to have been done unlawfully and from a premeditated design to effect the death of the deceased. This being so, these words are to be taken as constituting a part of the charge of the Court, and the charge should be so construed. The additional expression, “and at the time he fired the shot which killed Hansel Norman, he intended to kill him,” was unnecessary; but it cannot be harmful to the defendant as the word “intended” means “designed,” and the phrase last above quoted is immediately followed by the expression “it would make no difference at what precise time he made up his mind to- take Norman’s life,” which necessarily means that there must have been premeditation on the subject of killing the deceased, and the formation of a design to kill him, before he fired the fatal shot. Thus read, the second sentence of the charge, when considered in connection with the first sentence stating that the premeditation may have existed in the mind of the slayer an hour or longer, or may have been formed a moment before the fatal shot was fired, is not in my judgment erroneous.
The third sentence of the charge is: “If when he fired the pistol he intended to kill he is guilty of murder in the first degree, even although he may not have had in his mind any such intention at the time he drew his pistol.”
When taken in connection with the first sentence of the charge stating that the premeditated design to kill may have existed in the mind of the slayer for an hour or more, *71or may have been formed a moment before the fatal shot was fired, and considered with the second sentence of the charge that if the jury believe the defendant killed the deceased as charged in the indictment, without legal justification or excuse, and that at the time defendant fired the shot which killed deceased, he intended to kill him, it would make no difference at what precise time he made up his mind to hill him, the third sentence of the charge can not be said to be error, at least when the opinion does not contain any of the testimony as to the length of time between the drawing of the pistol and the firing of it at the-deceased, unless this sentence is a charge upon the facts.
The other subdivisions of the opinion are concurred in.