(dissenting).
I regard it a most serious miscarriage of justice to remand this cause for new trial. The murder of which appellant was convicted was as cold-blooded, deliberate, and premeditated as any I have ever considered. Appellant sought out his victim and waited patiently for his chance to see him. After a brief conversation, he shot him once in the chest, and then fired two murderous bullets into the back of his victim’s head as the wounded and dying man lay prostrate upon the floor. That is the case which was proved, and that is the crime of which appellant was convicted, and the jury’s verdict was most certainly one which a reasonable man might reach upon the evidence presented.
The sole reason for reversal is an unrealistic view that appellant was prejudiced by error in the trial judge’s charge to the jury. Certainly the judge committed error —But I do not for one moment accept the view that the error resulted in prejudice to the accused. Full, eloquent, and compelling proof of first degree murder had been carefully presented. Instead of causing prejudice to the appellant, when the trial judge introduced the alternative of second degree murder he opened the door for the jury to consider a lesser offense than that which had been so clearly proved. That the jury did not choose to find the lesser crime is no reason for this court to set aside a verdict which so manifestly might reasonably have been reached by the jury upon the evidence before it.
Appellant showed no consideration for his victim, and certainly he should not now receive the consideration and benefit of the highly recondite reasoning by which my brethren have concluded that appellant was prejudiced. Instead, I hold steadfastly to the view that in the cold light of reality, there was no prejudice and hence there is no cause for reversal.