Dissenting.
As I read the record in this case, five flagrant errors were committed, besides some lesser ones; but who can say that even the lesser errors in no wise influenced the jury in finding its hostile verdict?
First: In the indictment as originally returned by the grand jury, the defendant was described as Burnard “Whidden.” When the prisoner was brought before the Court for arraignment, the State Attorney told him to hold up his hand, and asked him whether he answered to the name of Burnard “Whidden.” He replied that he did not answer to the name of Burnard “Whidden,” but that his name was Burnard “Whitten.” The State Attorney then announced that he would have the error corrected, but continued to read the indictment, and at the conclusion asked the defendant if he was guilty or not guilty. The prisoner entered a plea of “guilty,” which the Court refused to accept and instructed the Clerk to *123enter a plea of “not guilty” for him. The name in the indictment was subsequently changed fourteen times, from “Whidden” to “Whitten,” as appears from the original indictment sent to this court by order of the Circuit Judge. The erasure of “Whidden” and typing “Whitten” palpably appear therein. _
If this change was made by the grand jnry, it became a new indictment on which Whitten was not arraigned and did not plead to. If it was not made by the authority of the grand jury, it was a forgery. We must assume the former. Whitten was never arraigned on this changed and in effect new indictment.
Second: Section 6028, Revised General Statutes, 1920, provides as follows: ‘ ‘ That when any minor, not married, may be charged with any offense and brought before any of the courts, including municipal courts, of this State, due notice of such charge prior to the trial thereof shall be given to the parents, or guardian of such minor, provided the name and address of such parent, or guardian, may be known to the court, or to the executive officers thereof. In the event that the name of such parent or guardian is not known or made known to the court or executive officer or cannot be reasonably ascertained by him, then such notice shall be given to any other relative or friend whom such minor may designate. The service of notice required by this Section to be given to the parent, or guardian or other person provided herein may be made as the service of summons ad respondendum is made, or in the event such parent, or guardian or other person provided herein may be beyond the jurisdiction of the court,' then, and in that event, service may be made by registered mail, or by telegram, and return of such service shall be made by the executive officer of the court in the same manner as returns are made upon summons ad respondendum,”
*124This statute was enacted to secure to a minor his constitutional right to a fair and impartial trial. Assuming that the prisoner was arraigned and pleaded to the indictment, it was before he was afforded the protection of a guardian ad litem, and he was without that protection during the critical period of selecting the jury that convicted him, the guardian not being appointed until after the jury was selected and sworn.
The protection this statute is intended to secure for a person accused of crime, should be afforded him through every stage of the trial from the beginning. He was without this protection in everything preliminary to the introduction of testimony.
This statute comes before us for application for the first time since its enactment. Shall we place upon it a construction that will make it the help and protection contemplated by the Legislature by judicial confirmation of the legislative will, or shall we nullify the legislative will and absolve a trial court of its duty or obligation to observe it?
Minors are wards of the Court where their property rights are concerned, even without a statute, and they cannot be deprived of these except under the very strictest compliance with all the provisions of the law on the subject. The act under consideration makes minors the wards of the Court where their lives and liberties are involved. Shall they be less wards of the Court in a matter of life and death, than they are in the matter of an acre of land or the ownership of an ox ?
The necessity for this law may not appeal to every one, but that is not a matter for the courts to pass upon. It is on the statute books and should be enforced in all its strictness, particularly where the life of a human being is involved.
*125The opinion of the majority of the court in reference to the failure to observe this statute and have a guardian present at the selection of the jury, which is probably one of the most important steps in the trial of a criminal case, says, that “it is not made to appear that any injury resulted to the defendant because, ’ ’ etc.
It is true the only injury that the record discloses is that he is sentenced to death.
When this case was first before this court, we said: ‘ ‘ The defendant’s testimony indicates that he is, perhaps, not of normal mentality, which makes it important that he should have the assistance of his parent or guardian, if he has one.” Whitten v. State, 82 Fla. 181, 89 South. Rep. 421.
Who can say that if this weak-minded, half idiot had had a guardian to help select his .jury that the result would not have been different?
Third: The error in admitting the confession alleged to have been made by the prisoner to Mrs. Rosa Nosworthy.
On the former trial of this case, the sheriff was allowed to testify to a confession which was improperly obtained. The confession alleged to have been made to Mrs. Nos-worthy was shortly after the alleged confession to the •sheriff.
The record in the former trial' shows that the confession to the sheriff was improperly obtained and should not have been admitted in evidence. On the second trial the sheriff did not testify to this confession, but Mrs. Nosworthy did, and the confession to her was the result •of the confession improperly obtained by the sheriff.
When the Court was inquiring into the admissibility of Mrs. Nosworthy’s confession during the absence of the .jury, objection to its introduction was made by the defendant, who stated that he was “prepared to show that the ■first statement, confession, was made to the sheriff while *126he was in. the custody of the sheriff and the sheriff was a common jailor of DeSoto County and was not in the county jail of DeSoto County at the time he made this statement,” and asked the court to make inquiry into the means used to secure the first confession. The Court refused to do this and ruled that the testimony of the witness with regard to the confession to Mrs. Nosworthy was. admissible.
The jury was then brought back into court, and in response to a question from the State Attorney, testified to an alleged confession by the prisoner; whereupon the defendant moved the court to strike this testimony because it was not shown to be voluntary, and because the statement was made while he was in the custody of the sheriff of DeSoto County, to whom he had previously made a statement that was involuntary, and because the character of the first statement to the sheriff had not been inquired into by the court: The court ruled it had already determined that the statement made to Mrs. Nosworthy was a voluntary one, and denied the defendant’s motion.
The refusal of the court to make an inquiry into the manner in which the first confession was obtained is clearly error, because upon the method by which the first confession was obtained depended the admissibility of the second confession. No rule seems to be more clearly settled than, “If a confession is obtained by such methods as to- make it involuntary, all subsequent confessions while the accused is under the operation of the same influences are also involuntary, and when once a confession under improper influence is obtained, the presumption arises that a subsequent confession of the same crime flows from the same influences even though made to a different person from the one to whom it is first made.” 1 R. C. L. 583.
The authorities .are so abundant and so overwhelming on *127this proposition that instead of attempting to cite them, I will merely cite cases where they have been compiled. See Note to Daniels v. State (Ga.), 6 Am. St. Rep. 249; Ammons v. State, (Miss.), 18 L. R. A. (N. S.) Notes 857.
The same rule prevails in this State: McNish v. State, 45 Fla. 83, 34 South. Rep. 219. It seems quite clear that the trial court erred in refusing to investigate the method by which the first confession was obtained by the sheriff, as it was only by that means that it could properly decide whether the second confession was admissible.
In the instant case we have a confession obtained by an officer by improper influences, and shortly afterwards the confession repeated to some one else.
When the second confession is sought to be introduced the defendant requested the court to make inquiry into the manner which the first confession was obtained. This the court refused, and admitted the second confession over the defendant’s objection, without regard to the influence that had been exerted on the mind of this half-wit by the sheriff when he obtained the first confession.
Such a proceeding is most dangerous; to illustrate: A sheriff or other officer may by threats, by beatings, by promises of immunity, obtain an alleged confession. He may then have some one else interview the prisoner, who upon inquiry, acting from fear or the hope of immunity, repeats the statements made to the officer. Under this decision it would not be error to allow the second statement to be introduced in evidence, and to refuse to investigate how the first confession was obtained.
Fourth: I think the testimony clearly establishes that the prisoner was a moren — a mental deficient, whose mentality was that of a ten year old child, — or rather, he was not as intelligent as the average ten year old child. As this court said in its former decision, “The defendant’s *128testimony indicates that he is, perhaps, not of normal mentality. ’ ’
The testimony would have been much stronger to establish this mental weakness, had the court not erred by persistently refusing to permit the defendant to introduce evidence covering this point.
Fifth: J. R. Down was a witness on behalf of the defendant. During his cross-examination, when he seemed to be answering the questions in as frank and intelligible-manner as the questions propounded to him were susceptible of, the court broke in upon the proceedings with this remark: “The demeanor of the witness is not such as the court approves with regard to readily answering the questions and I direct now that the witness fully answer the-question or state that he has no knowledge, in order that there may come an end to this.”
This remark by the court could have no other tendency than to discredit the witness with the jury. Upon this point this court said in Hubbard v. State, 37 Fla. 156, 20> South. Rep. 235: “The utmost care should always be used by the trial judges, especially in cases where human life-is involved, not to let any expression fall, either by questions or otherwise, that is capable of being interpreted by the jury as an index of what he thinks of the prisoner, his. counsel or his case. ’ ’
See also Lane v. State, 44 Fla. 105, 32 South. Rep. 896; Galloway v. State, 47 Fla. 32, 36 South. Rep. 168; Disney v. State, 72 Fla. 492, 73 South. Rep. 598. This admonition will be lightly heeded by trial judges’ if appellate-courts condone such expressions.
Some of the errors that I refer to as of lesser weight are only so by comparison with the more serious ones I have discussed.
*129One of these was allowing the defendant’s counsel only fifteen minutes in which to confer with his witnesses before forcing the defendant to trial.
It frequently takes very able counsel many days and sometimes longer to confer with witnesses, digest and arrange testimony and prepare a proper defense. The Court allowed the defendant fifteen minutes.
(1) The defendant’s counsel considered that for a proper appreciation of the testimony, it was necessary that the jury should view the premises where the killing occurred. The court refused this reasonable and proper request.
The witness Dishong testified that he was “trailing a track in the sand right behind him, which the defendant admitted to me he was looking at me when I trailed him.
Upon objection, this testimony was stricken, but the court in doing so said, “I think that is part of a confession.” So while the testimony of the sheriff was stricken, the court in effort told the jury that there had been a confession by the prisoner to the sheriff Dishong.
(2) J. B. Proctor, Whitten’s half brother, undertook to testify to the impairment of the defendant’s faculties following an attack of typhoid fever.
The Court on motion of the State Attorney struck out all that part of the testimony as to his opinion of the condition of the defendant’s mind.
In view of the finding by this court that the defendant was not of normal mentality, the trial court should have been most liberal in permitting any testimony that would tend to throw light upon his mental responsibility, rather than excluding it and sending a half-wit to the gallows.
(3) The same criticism is made of the rulings of the court on objections to other testimony on behalf of the *130defendant tending to enlighten the jury as to' his mental condition. • ■
The errors complained of not only “ resulted in a miscarriage of justice,” but being violations of the defendant’s constitutional right to a fair and impartial trial, and in violation of well settled principles of law, worked in themselves a miscarriage of justice.
For these and other errors, I think the judgment should be reversed.
Taylor, C. J., concurs in this dissent.