We dissent. The murder, as shown in this case, was committed in a cold-blooded and brutal manner, and the defendant in the perpetration of the crime exhibited a firm determination to take life. The evidence is conclusive to the effect that the defendant fired three shots into the body of the deceased, and, after he had fallen to the floor, he beat him on the head with the butt end of his revolver. There is no semblance of justification of self-defense shown by the evidence, and no circumstance of mitigation can be offered on behalf of the defendant.
*544While we do not approve all that the trial court said in his review of the evidence, especially the reference made by the court to the defendant, we are satisfied that the jury acting upon the practically uncontradicted evidence could not have done otherwise than to have rendered the verdict it returned.'
Article VI, section 4y2 of the Constitution, provides that no judgment shall be set aside or new trial granted on the ground of misdirection of the jury, or for any error as to any matter of procedure, unless after an examination of the entire case, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
Under the constitutional provision, as now written, we must be able to say affirmatively that the error complained of resulted in a miscarriage of justice. This we think cannot be said upon an exaihination of the entire cause. It will be noted that the court informed the jury that the responsibility in fixing the punishment was a matter entirely within its discretion.
Nourse, J., pro tern., concurred.
Rehearing denied.
Seawell, J., and Nourse, J., pro tern., voted for a rehearing.