(dissenting). — I concur in the view of Mr. Justice Carter that the charge as to premeditated design given by the judge below is not reversible error. The charge as a whole was obviously directed to the length of time and degree of deliberation necessary to a premeditated design and upon this point its doctrine is sustained by ample authority both of this and other courts. And as applied to this particular case, where incapacity for the formation of such a design because of drunkenness is the defense made, I have no criticism to make of it as a complete definition of what will constitute such a design. And in the case of a killing in cold blood I think it, in the light of our previous decisions, a sufficient definitioni of the term.
In view of the scope of the discussion in the other opinions filed, which seem to aim at a definition sufficient and accurate in all cases, it may be well that I should say that in my judgment such a definition should contain a qualification that the design to be premeditated must be one not formed and acted upon in the heat of passion. Both of the other opinions filed, as well as the previous decisions of this court (Williams v. State, 41 Fla. 295, 26 South. Rep. 184; Olds v. State, 44 Fla. 452, 33 South. Rep. 296), recognized that a design to take life may be fully and consciously formed by the party before acting upon it, and yet that if this is done in the heat of passion the slayer is guilty only of manslaughter. Yet without the qualification which I suggest, such an act would come within the definition *79given of murder in the first degree as there is the fully formed conscious purpose to kill preceding and inducing the act of killing.' This shows such a definition of premeditated design to be too broad to be entirely accurate in all cases, and the discrepancy can not be explained by saying that the definition is accurate but the heat of passion goes to the capacity of the party to form a premeditated design. To say that the party has capacity for a fully formed conscious purpose before the act, but no capacity for a premeditated design, is to admit that the one is not the equivalent of the other. I think, therefore, that in a case where the evidence tends to show a killing in the heat of passion the. charge as given here, if without qualification anywhere as to the effect in law of the heat of passion in reducing the crime, would be misleading and tend to bring about a verdict for murder when the evidence showed only manslaughter.
I do not mean to imply that even in such, a case it will be error not to incorporate .this qualification in that part of the charge defining murder in the first degree. The usual form of instruction in our courts is to define murder in the first degree substantially as done in this case, and in cases calling for it in charging upon manslaughter to add the qualifying instruction that a killing, even though intentional, which is designed and executed in the heat of passion, is manslaughter only, and such a charge taken as a whole will give the jury a correct interpretation of the law.
Upon the other assignments of error I concur in the opinion of Mr. Justice Hocker.
Cockreeu, J.Believing, as I do, that the definition of a premeditated design so long followed in this State is not only sustainable on principle but is taken from the decisions of those States that have or had the same statutory definition of murder that obtains here, and that this definition was enacted into the statute by the re-enactment of the *80statute, I am of the opinion that no error was committed by the court below in giving the eleventh charge, nor any reversible error in giving the tenth charge.
In other respects I concur in the opinion of Mr. Justice Hocker.