Dissenting.
The introduction in evidence of the stenographic report, reduced to writing, of testimony of the physician who examined the body of the deceased, which was given by the witness at a former trial of the defendant and others jointly indicted with him, was error. Its admission *369is expressly forbidden by statute. Chap. 8572, Acts of 1921. But later during the progress of the trial this wit-, ness was called, appeared and testified and his evidence was “in substance * * * the same as that given upon the former trial.” The accused did meet the witness “face to face” at this trial. Opportunity to fully cross-examine him was afforded. People v. Elliott, 172 N. Y. 146, 60 L. R. A. 318; Robertson v. State, 63 Tex. Crim. 216, 142 S. W. Rep. 533, Ann. Cas. 1913C, 440. Not only so, the means were afforded by the State to the accused to discredit the witness, if, there was variance between the testimony given by him at the two trials, by contrasting inconsistent statements, if any, made on the former trial with the testimony given by him at the trial then in progress. So the error was not harmful. It tended rather to his benefit than his detriment.
There was a request from defendant’s counsel to the court to give to the jury a charge defining the term “reasonable doubt.” The phrase “reasonable doubt” may not be susceptible of precise definition, but the definition contained in the charge requested has been approved by this court. The.trial court refused to give the requested charge. This refusal is assigned as error and the following authorities are relied on: Reeves v. State, 29 Fla. 527, 10 South. Rep. 901; Davis v. State, 46 Fla. 137, 35 South. Rep. 76.
In the latter case this court said: “The second instruction was a request for a definition of the words ‘reasonable doubt, ’ and was couched in the language approved by' this court in the ease of Lovett v. State, 30 Fla. 142, 11 South. Rep. 550, and also in Bassett v. State, 44 Fla. 12, 33 South. Rep. 262. The court did not in his charge give or attempt to give a definition in any form, nor was *370any instruction given embracing such a definition. We have held that the giving of the definition in any of the forms approved by this court will dispense with the necessity for giving the definition in another form, but that it is error when no charge on the subject has been given, to refuse to give one of the definitions when so requested. Whatever views may be entertained by other courts as to the advisability of attempting a definition of this phrase, the rule is well settled in this State. In Reeves v. State, 29 Fla. 527, 10 South. Rep. 901, the court below had charged that if the jury has any doubt as to the guilt of the defendant, they should give him the benefit of that doubt and acquit, yet this court held it was error to refuse an instruction as to what constitutes a reasonable doubt, and for this error alone reversed the case. Oliver v. State, 38 Fla. 46, 20 South. Rep. 803. * *. * For refusing to charge as requested upon the definition of a reasonable doubt, the judgment is reversed and a new trial awarded. ’ ’
The giving of the following charge is assigned as error: “A person may act upon appearances but when he does so act, he does so- at his own peril, and before a person can avail himself of the defense tliat he used a deadly weapon in defense of his life and be justified, he must satisfy the jury that the defense was necessary at the time and that he did all that he could to avoid it, and that it was necessary to protect his own life or to protect himself from such great bodily harm as would give him a reasonable apprehension that his life was in imminent danger.” (Italics supplied). This charge is clearly erroneous. It imposed upon the defendant the burden of establishing with a greater degree of certainty than the law requires the necessity of a resort to the means employed by him in defense of himself. Hathaway v. State, 32 Fla. 56, 13 *371South. Rep. 592; Hubbard v. State, 37 Fla. 156, 20 South. Rep. 235; Lane v. State, 44 Fla. 105, 32 South. Rep. 896.
In Lane v. State, supra, in considering a charge substantially the same as this, the court said: “The jury need not be satisfied. If the evidence raises a reasonable doubt it will be sufficient. Furthermore, if the circumstances arc such as to authorize a reasonably cautious man to believe his life to be in immediate danger, or that he was in immediate danger of receiving great personal injury, it will suffice, though an actual necessity to kill does not exist. The charge also conveys the idea that if a deadly weapon is used in defense of life the accused must satisfy the jury that the killing was necessary to protect life or to protect the slayer from such great bodily harm as would give him a reasonable apprehension that his life was in immediate danger. The statute justifies the killing when done under circumstances authorizing it to protect life or the slayer from great personal injury. The charge is clearly wrong, and after mature reflection we are of opinion that we cannot safely hold that its error was fully corrected by other instructions given, or that it was entirely harmless.”
On behalf of the State it is conceded that the refusal to give the requested charge defining “reasonable doubt” is error, but it is contended that in view of the evidence adduced and the verdict of manslaughter returned, the principle announced in the “Harmless Error” statute (§2812 Rev. Gen. Stats.) should be applied, and that “after an examination of the entire case,” unless it appear that the error complained of has resulted in a miscarriage of justice, the judgment should be affirmed.
' With respect to the erroneous charge given by the trial court, the position of the State is that this charge not hav*372ing been objected to in the motion for new; trial, the point is not presented, to this court for review.
On behalf of the defendant it is contended that the two positions are inconsistent. The, argument is that under the authorities cited both errors are obvious; that to overcome the first the statute authorizing “an examination of the entire case” is invoked; that this “examination” discloses the erroneous charge given, notwithstanding the “error as to * . * . * procedure” by the defendant in not duly objecting thereto, and that if the statute is to be applied as it operates against the defendant, it should also be applied as it operates to his benefit. This argument, while ingenuous, is fallacious. It overlooks the express provision of the statute that an “examination of the entire ease ’ ’ is for the purpose of ascertaining 'whether the “error complained of” has resulted in a miscarriage of justice. Charges given may be “complained of” by being-excepted to when given or embodied in a motion for new trial. Steele v. State, 85 Fla. 57, 95 South. Rep. 299; Bynum v. State, 46 Fla. 142, 35 South. Rep. 65, §2700 Rev. Gen. Stats. Errors contained in charges given but not objected to are waived. Errors waived are not complained of.” The “Harmless Error” statute (§2812 Rev. Gen. Stats.) does not repeal Section 2700, Rev. Gen. Stats., nor abrogate established rules of procedure. It was not designed to extend the scope of review on writ of error. It does little, if any, more than enact into law a rule of decision long established in- this jurisdiction. This contention therefore fails.
The giving- of the erroneous charge not having been so objected to as to present the question here for review, cannot be considered. In view of other charges given and the evidence contained in the record, I do not regard the re*373fnsal of tlie trial court to give tbe requested charge defining the term “reasonable doubt” as prejudicial.
No harmful error having been made to appear, the judgment should be affirmed.