The indictment herein charges as follows: ‘ ‘ That Erwin Sessions, alias Lightning, on the fifth day of April in the year of our Lord one thousand nine hundred and twenty, at and in the County of Hillsborough aforesaid, did unlawfully and feloniously, and from a premeditated design to effect the death of one John Watson make an assault upon the said John Watson, and with a certain pistol which was then and there loaded with gunpowder and leaden bullets and which said pistol he the said Erwin Sessions alias Lightning, then and there had and held in his hands, he, the said Erwin Sessions, alias Lightning, did then and there unlawfully, feloniously and from a premeditated design to effect the death of the said John Watson, shoot off and discharge the said pistol so loaded with gunpowder and leaden bullets as aforesaid, and by him, the said Erwin Sessions, alias Lightning, then and there had and held in his hands as aforesaid, at, upon and into the said John Watson, thereby and by thus striking the said John Watson with the said leaden bullets, inflicting on and in the body of the said John Watson one mortal wound, of which said mortal wound,, the said John Watson then and *250there died; and so the said Erwin Sessions, alias Lightning, in manner and form aforesaid, did unlawfully and feloniously, and from a premeditated design to effect the death of the said John Watson, kill and murder the said John Watson; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Florida.”
Writ of error was taken to a conviction and judgment of murder in the second degree.
The evidence showed the fatal wound was in the head and a variance is claimed in view of the charge that the defendant inflicted “on and in the body of the said John Watson one mortal wound,” etc. The charge is that the defendant shot off and discharged a pistol “at, upon and into the said John Watson, thereby and thus striking the said John Watson with the said leaden bullets, inflicting on and in the body of the said John Watson one mortal wound,” etc. The words “and in the body of” may be regarded as meaning “and in the person of” or as being surplusage. Manifestly the charge is that the wound was inflicted on the person of the decedent where it was mortal in its nature; and there was no intent to charge that it was not inflicted in the head of the decedent. There was no fatal variance between the allegations and the evidence. This ruling does not conflict with the decision in Walker v. State, 34 Fla. 167, 16 South. Rep. 80.
It is well settled' that a defendant is not entitled as of right to an instruction to the jury to return a verdict of acquittal. Yarbrough v. State, 79 Fla. 256, 83 South. Rep. ' 873.
An instruction, in a trial for murder'that there is no evidence before the jury authorizing a' conviction for a par*251ticular degree of unlawful homicide violates- the spirit of the statute requiring the charge to be upon “the law of the case only,” but such a charge, though technically erroneous, will not constitute reversible error, if it relates to a higher degree than that of which the accused was convicted, or if it relates to a degree lower, but there was no testimony before the j.ury from which it could with any reason have formed a verdict of guilty of the excluded lesser degree. Thomas v. State, 47 Fla. 99, 36 South. Rep. 161.
There is ample evidence to sustain the verdict, no mate rial errors of law or procedure are shown, and it does not appear that the jury was not governed by a due consideration of the evidence in rendering the verdict.
Affirmed.
Taylor, Whitfield, Ellis and West, J: J., concur. Browne, C. J., dissents.