Dissenting.
In view of the evidence adduced and the charges given, the errors complained of could not reasonably have been prejudicial or harmful to the defendant in the trial that resulted in his conviction of manslaughter. Manslaughter is not a degree of murder, but is a grade or degree of un*359lawful homicide. Boyett v. State, 69 Fla. 648, 68 South. Rep. 931.
Errors iu the admission of evidence that are not vital, will not cause a reversal of a judgment when the testimony clearly establishes the guilt of the accused, and the judgment is in accord with the law and the charge of the court. Wilkins v. State, 75 Fla. 483, 78 South. Rep. 523; Milligan v. State, 75 Fla. 815, 78 South. Rep. 535; McQuagge v. State, 80 Fla. 768, 87 South. Rep. 60; Ward v. State, 83 Fla. 311, 91 South. Rep. 189; Owens v. State, 65 Fla. 483, 62 South. Rep. 651; Kersey v. State, 73 Fla. 832, 74 South. Rep. 983; Chauncey v. State, 68 Fla. 93, 66 South. Rep. 430; Robinson v. State, 70 Fla. 628, 70 South. Rep. 595.
The admission of incompetent evidence is harmless error, when the evidence properly admitted is conclusive of the defendant’s guilt. Hinson v. State, 62 Fla. 63, 56 South. Rep. 674; Edington v. State, 81 Fla. 634, 88 South. Rep. 468; Poyner v. State, 81 Fla. 726, 88 South. Rep 762; Seymour v. State, 66 Fla. 133, 63 South. Rep. 7; Rhodes v. State, 65 Fla. 541, 62 South. Rep. 635; Wallace v. State, 41 Fla. 547, 26 South. Rep. 713; Wilson v. State, 47 Fla. 118, 36 South. Rep. 580; Synes v. State, 78 Fla. 167, 82 South. Rep. 778; Sims v. State, 54 Fla. 100, 44 South. Rep. 737; Patrick v. Kirkland, 53 Fla. 768.
The admission in evidence under Section 2723, Revised General Statutes of 1920, of a stenographic report of the testimony of a physician as to an autopsy held by him upon the deceased, taken on a former trial of the accused with others for the same offense, was harmless as the physician was afterwards “produced” as required by Ch. 8572 of the statutes and testified in the case to all the material facts contained in the report of testimony taken at the former trial which was erroneously admitted in evi*360denee. There was no controversy as to the location and nature of the fatal wound which was the matter testified to by the witness. At the trial the accused did "meet the witness against him face to face” as required by the Constitution and by Chapter 8572, Revised General Statutes. The statute, Chapter 8572, forbidding the use of the report of the testimony became a law subsequent to the homicide; and if it may be regarded as applicable to the trial proceedings in view of the broad provisions of Section 32, Article III of the Constitution, that "the-repeal or amendment of any criminal statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment,” the provision of the statute that "testimony of a witness given upon- a trial of a criminal cause shall not be admitted against an accused person in a subsequent trial,” was violated, but as the witness was afterwards "produced” and testified in the case as required by the statute, the violation of the statute in admitting the report of testimony at the former trial was harmless, as the testimony related to the nature of the wound inflicted upon the deceased, and not to the guilt of accused in firing the shot, and Section 2812, Revised General Statutes, relative to harmless errors is as binding as is the statute forbidding the use of the transcribed testimony, the purpose of both statutes being that "by due course of law, right and justice shall be administered” as is required by Section 4, Declaration of Rights of the State Constitution.
The witness who referred to a drawing in giving testimony stated that was a correct diagram of the location. If under the rule stated in Hisler v. State, 52 Fla. 30, 42 South. Rep. 692, the diagram was not properly used in evidence, the error if any was manifestly harmless as the diagram was not essential 'to the merits of the verdict *361found, and it could not reasonably have prejudiced the defendant.
Self defense was interposed to justify the firing of the fatal shot that entered the back of the deceased. The statutory elements of manslaughter do not necessarily include an intent to kill.
Section 5032, Revised General Statutes of 1920, provides that: “Homicide is justifiable when committed by any person * in the lawful defense of such person * when there shall be a reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such .design being accomplished. ” ■
“The killing o'f a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder, according to the provisions of this article, shall be deemed manslaughter, and shall be punished by imprisonment in the State prison not exceeding twenty years, or imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars.” Sec. 5039 Rev. Gen. Stats. 1920.
“Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter.”' Sec. 5043 Rev. Gen. Stats. 1920.
In order to justify a homicide on the ground of self-defense under our statutes, there must be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there must be imminent ■danger (real or apparent) of such design being accom— *362plished.. While the danger need not be actual, nor the necessity to kill real, yet the surrounding circumstances as they appear to the slayer at the time he does take life-, must be such as would induce a reasonably cautious man to believe that the danger was actual and imminent, and the necessity real, in order that the slayer may be justified in acting upon his own belief to that effect. Green v. State, 43 Fla. 556, 30 South. Rep. 656; Fuentes v. State, 64 Fla. 64, 59 South. Rep. 395; Stafford v. State, 50 Fla. 134, 39 South. Rep. 106; Snelling v. State, 49 Fla. 34, 37 South. Rep. 917; Morrison v. State, 42 Fla. 149, 28 South. Rep. 97; Smith v. State, 25 Fla. 517, 6 South. Rep. 482; Alvarez v. State, 41 Fla. 532, 27 South. Rep. 40; Olds v. State, 44 Fla. 452, 33 South. Rep. 296; Pinder v. State, 27 Fla. 370, 8 South. Rep. 837; Padgett v. State, 40 Fla. 451, 24 South. Rep. 145.
“A defendant to justify his acts on the ground of self defense must have used all reasonable means within his power and consistent with his own safety, to avoid danger and to avert the necessity of taking the- life of the 'deceased.” Stafford v. State, 50 Fla. 134, 39 South. Rep. 196; Snelling v. State, 49 Fla. 34, 37 South. Rep. 917; Owens v. State, 54 Fla. 383, 60 South. Rep. 340; Doke v. State, 71 Fla. 633, 71 South. Rep. 917. “And provided the defendant did not take the life of the deceased after all real or apparent necessity for doing so had ceased.” Peadon v. State, 46 Fla. 124, text 136, 35 South. Rep. 204; King v. State, 54 Fla. 47, 44 South. Rep. 941. There must have been not only the belief, but also reasonable ground for the accused to believe that, at the time of killing the deceased, he was in imminent or immediate danger of his. life or great bodily harm from the deceased, to excuse the homicide On the ground of self-defense. Wilson v. State, 30 Fla. 234, 11 South. Rep. 556.
*363The circumstances of a case may at least make it a question for the jury, whether a killing was not in pursuance of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain. Ballard v. State, 31 Fla. 266, 12 South. Rep. 865.
Upon the subject of self defense, the question of whether the defendant was reasonably apprehensive of danger or great harm from the deceased is a question of fact to be gathered by the jury from all the circumstances in the case. Harris v. State, 75 Fla. 527, 78 South. Rep. 526; Ward v. State, 75 Fla. 736, 79 South. Rep. 699.
Where the testimony upon a charge of homicide is so strong and clear as to preclude the conclusion that the killing was excusable or justifiable, and 'that a verdict of guilty of manslaughter in the third degree is fully sustained by the evidence, the verdict should not be set aside upon the ground that the judge did not instruct the jury fully upon the question of justifiable or excusable homicide. Brown v. State, 18 Fla. 472.
Where the testimony is clearly sufficient to sustain the verdict, and it is evident that no jury could have been sustained by an error in an instruction given to the jury, the verdict will not be disturbed. Wooten v. State, 24 Fla. 335, 5 South. Rep. 39, 1 L. R. A. 819.
Alleged errors in giving or refusing charges or instructions, and in the admission or rejection of testimony which do not weaken the effect of the admitted testimony, and which do not reach the legality of the trial .itself will not be considered grounds for reversal where the evidence leaves no-room for reasonable doubt of the defendant’s guilt. Hopkins v. State, 52 Fla. 39, 42 South. Rep. 52.
*364Where no fundamental rights have been violated, and the evidence of guilt is amply sufficient, technical errors in rulings on the admission of testimony or in giving or refusing charges will not cause a reversal. Gee v. State, 61 Fla. 22, 54 South. Rep. 458; Goff v. State, 60 Fla. 13, 53 South. Rep. 327; Coatney v. State, 61 Fla. 19, 55 South. Rep. 285; Wallace v. State, 41 Fla. 547, 26 South. Rep. 713; Caldwell v. State, 43 Fla. 545, 30 South. Rep. 814; Davis v. State, 47 Fla. 26, 36 South. Rep. 170; Wilson v. State, 47 Fla. 118, 36 South. Rep. 580; Sallas v. State, 61 Fla. 59, 54 South. Rep. 773.
Chapter 6223 Acts of 1911, Section 2812 Revised General Statutes 1920, as to harmless errors, merely enacted into law a rule of decision that in substance and effect had been theretofore observed by this court. The judicial rule and the statute each in effect forbids a reversal for errors that were rendered harmless by other matters in the proceedings or by the verdict or judgment in the cause.
The • judgment should not be reversed or a new trial granted in any case, civil or criminal, for errors in rulings upon admission or rejection of evidence, or for errors in giving or refusing charges, or for errors in any other matter of procedure or practice, unless it shall appear to the court from a consideration of the entire cause that such errors injuriously affect the substantial rights of. the complaining party. Nor should a judgment be reversed or a new trial granted on the ground that the verdict is not sustained by the evidence, unless it appears that there was no substantial evidence to support the finding, or that upon the whole evidence the verdict is clearly wrong, or that the jury were not governed by the evidence in making-their finding. Johnson v. State, 80 Fla. 61, 85 South. Rep. 155; Dixon v. State, 79 Fla. 586, 84 South. Rep. 541; Sandlin v. State, 76 Fla. 368, 79 South. Rep. 714; Crane v. *365State, 76 Fla. 236, 79 South. Rep. 806; Kersey v. State, 73 Fla. 832, 74 South. Rep. 983; Seymour v. State, 66 Fla. 133, 63 South. Rep. 7; Shuler v. State, 84 Fla. 414, 93 South. Rep. 672; Lewis v. State, 84 Fla. 466, 94 South. Rep. 154; Breen v. State, decided this term; Boyington v. State, 77 Fla. 602, 81 South. Rep. 890; Padgett v. State, 64 Fla. 389, 59 South. Rep. 946; Barrentine v. State, 72 Fla. 1, 72 South. Rep. 280; Thomas v. State, 73 Fla. 115, 74 South. Rep. 1.
In this case it appears that there was on a road near the home of the deceased, an encounter between the deceased and four others who were jointly indicted for the murder of the deceased; that after the deceased’s gun was taken from him by his antagonists he called to his wife to bring his pistol from his house and that several shots were fired from the pistol at his antagonists by the deceased, and one or more shots were fired from shot guns by some of the antagonists, and one rifle shot was fired by the plaintiff in error W. II. Young at the deceased. The deceased was mortally wounded by a rifle shot in the back. The bullet “passed through the body from the rear to the front,” and. lodged “under the skin about two inches to the left of the right nipple.” This undisputed physical fact, taken with all the testimony, shows that the deceased was retreating from the encounter when he was fatally wounded by the shot admittedly fired by the plaintiff in error. If the deceased Avas retreating there could under the circumstances have been no reasonable ground for the accused to apprehend imminent danger of great personal injury from the deceased. The defendant belorv testified that when the deceased fired the last shot from his pistol he dropped his hand and turned his side towards the accused just as the accused fired the fatal shot. The jury in effect found on supporting testimony that the fatal *366shot was fired after the deceased had turned his back to the accused and was retreating.
As the deceased was fatally shot in the back after he had ceased firing and had dropped his hand by his side and had turned from his antagonists, the testimony of- the defendant that he fired the fatal shot in self defense, when considered with all the evidence, does not tend to indicate that when the deceased was shot by the accused, the latter had “reasonable ground to apprehend a design” on the part of deceased “to commit a felony” on the accused or to do him “some great personal injury,”, and that there was “imminent danger of such design being accomplished,” as contemplated by the statute. Under these circumstances as shown by the evidence, an erroneous abstract charge that an accused “must satisfy the jury that the defense was necessary at the timé” &c., could not have harmed the defendant, because the deceased having been shot in the back the testimony of the defendant under the circumstances in evidence does not raise a reasonable doubt as to the unlawfulness of the homicide. The testimony clearly warrants a finding by the jury that there was no real or apparent danger of “great personal injury” to the accused by the deceased, when the accused fired the fatal shot, and that the defendant did not use all reasonable means within his power and consistent with his own safety to avoid danger and to avert the necessity of taking the life of the deceased and that the accused took the life of the deceased after all real and apparent necessity for doing so had ceased.
The testimony adduced to show justification in self defense (Sec. 5033 Rev. Gen. Stats. 1920), taken in connection with the entire evidence including the physical facts of the fatal injury, is not sufficient to raise a reasonable doubt of the guilt of the defendant of an unlawful horni*367eide, the jury having found the lowest degree, therefore errors in admitting or excluding testimony that did not violate fundamental rights of the accused, and in refusing a- special charge defining “a reasonable doubt,” none having been given, could not reasonably have prejudiced or harmed the defendant. Brown v. State, 18 Fla. 472; Willingham v. State, 21 Fla. 761; Wooten v. State, supra; Johnson v. State, 29 Fla. 558, 10 South. Rep. 686. The same result follows if under the Gilchrist statute, Chapter 6223, Acts of 1911, Section 2812 Revised General Statutes of 1920, which requires the court, when applying the statute, to make “an examination of the entire case,”'the charge on self defense that was given and was assigned as error but was not duly excepted to (Bynum v. State, 46. Fla. 142, 35 South. Rep. 65), should be and is considered in determining whether ‘ ‘ the error complained of has resulted in a miscarriage of justice.” See Witherspoon v. State, 76 Fla. 445, 79 South. Rep. 449; Sykes v. State, 68 Fla. 348, 67 South. Rep. 121.
“The mere fact that technical error was committed by the trial court in some of its rulings may not be sufficient; the errors must have been harmful or prejudicial to the rights of the plaintiff in error. ’ ’ Danson v. State, 62 Fla. 29, 56 South. Rep. 667.
While the court charged the jury that “before a person can avail himself of the defense that he used a deadly weapon in the defense of his life and be justified, he “must satisfy the jury that the defense was necessary at the time” &e., the court also charged the jury: “Remember, it would be a violation of your oath as jurors and of your duty as citizens to convict accused persons on testimony which fails to convince you beyond a reasonable doubt of their guilt,” and that “a person charged with the commis*368sion of an offense is presumed to be innocent until proven guilty beyond a reasonable doubt, and this presumption of innocence follows the accused throughout the tidal until you gentlemen arrive at a verdict; ’ ’ and that ‘ ‘ The court charges you that under the law of this State the defendant is entitled to the benefit of every reasonable doubt that arises from the evidence or the lack of evidence in the case. ’1
The charges are abstract and in the main correct.
In view of the entire evidence and of the charges taken as an entirety, it does not seem reasonable that the plaintiff in error was injured by the abstract statement in the charge first above quoted, that a defendant “must satisfy the jury ’ ’ that he acted in self defense.
The statutes of the State do not define the phrase “a reasonable doubt” or require a definition of it to be given to the jury when instructing them as to the nature of the proofs required for conviction in a criminal prosecution; and definitions formulated by the courts and given in charges to the jury, if considered at all by the jury, may tend to confuse and mislead rather than to enlighten and assist them in determininng the issues being tried. Certainly no harm could reasonably have resulted to the defendant in this case from a failure or a refusal of the court to give to the jury a definition of “ a reasonable doubt. ’ ’