*196On Rehearing.
Per Curiam.A petition for rehearing was granted in this case because the court desired a fuller discussion upon the effect of the omission of the word “design” from the charge of the court defining the crime of murder in the first degree. The jury was directed to find the defendant guilty of murder in the first degree if they should find from the evidence beyond a reasonable doubt that the “defendant unlawfully killed the deceased at the time and place and by the means charged in the indictment and that he did so of and from a premeditated on his part to .effect the death of the deceased.” The word “design” which should have immediately followed the word “premeditated” in the charge was omitted.
Presumably the charge was given literally as it was written. The statute requires the charge in a capital case to be wholly in writing and this court in Morrison v. State, 42 Fla. 149, 28 South. Rep. 97, said the correct rule is “it should be given literally as it is written. ’ ’
It appears from the record that the defendant duly excepted to the giving of the charge quoted. There is no other instruction in the record defining murder in the first degree. Design or intent to effect the death of the person killed or some other person is an essential element in the crime of murder as defined by the statute. And while the word “design” seems to be a necessary concomitant of the word “premeditated” as used in the instruction so that the latter word can not be pronounced without suggesting the former; one can hardly think of the act of premeditation without also thinking of intention or design as related to it, yet it is not for the court to set at naught the words of the statute and assert that one on trial for the capital crime *197of murder is not denied a fair trial according to the forms and procedure of law when the offense with which he is charged in the indictment is incorrectly defined by the court in an instruction to the jury.
The case should be reversed on the authority of Morrison v. State, supra.
The judgment is reversed.
Browne ,C. J., and Taylor and Ellis, J. J., concur. Whitfield and West, J. J., dissent.