dissenting.
Substantial rights of citizens should not be whittled away. The tendency even of such process should be guarded against. The priceless privilege of an orderly trial in accordance with law should not be impaired by resorting to inferences of implications that mandatory, statutory provisions have been complied with when the record indicates the reverse. Considerations such as these have led to a reversal of this case. I fully agree to the imperative necessity for the faithful observance of these vital principlés if the integrity of our judicial system is to endure, but it seems to me that the facts as shown by the record in this case do not present a demand for their invocation.
Murder in this State is a statutory offense. An essential element of murder in the first degree (not committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary) is “premeditated design” upon-the part of the slayer to effect the death of the person killed or of any human being. It is a capital offense. (Chap.' *1988470, Acts of 1921, Laws of Florida). In capital cases the charge of the trial court to the jury “shall be wholly in writing and upon the law of the case only.” (Sec. 6092, Eev. Gen. Stats, of Fla.)
The charge now held to be fatally defective is set out in the original opinion. In charging upon the legal effect of the evidence the court instructed the jury that if they found from the evidence beyond a reasonable doubt that the defendant unlawfully killed the deceased as charged “and that he did so of and from a premeditated on his part to effect the death of the deceased that he should be found guilty of murder in the first degree.” The alleged defect is the omission of the word “design” after the word “premeditated” in this charge. In the next paragraph, following in orderly sequence, the term “premeditated design” is employed, and my view of the case is that a jury of fair intelligence would not have been misled by the omission. The word “design,” or its equivalent, is so clearly implied from the context that it would naturally be supplied and can, therefore, hardly be said to have been in fact omitted from the written charge.
In Cromwell v. State, 59 Tex. Cr. Rep. 525, 129 S. W. Rep. 622, the Court of Criminal Appeals of Texas considered the following charge given by the trial judge, alleged to be defective because of the omission of the word ‘ ‘ doubt; ” “ The defendant is presumed by law to be innocent, until his guilt is established by legal and competent evidence to your satisfaction beyond a reasonable.....This reasonable doubt extends to every phase of the case; and if you have a reasonable .... of the guilt of the defendant, you will give him the benefit of such doubt, and acquit him. ’ ’ The court said: “ It is insisted that the omission of the word ‘doubt’ following ‘reasonable’ renders the charge *199of the court unintelligible and ambiguous, and that the same was practically a refusal on the part of the court below to give in charge to the jury the doctrine of reasonable doubt that must be given in all criminal cases. We have carefulty considered this question, and have come to the conclusion that there is no ■ merit-in appellant’s contention. If a word should be omitted that changed the whole meaning of the sentence’ it might be just ground of complaint, but where the mind would necessarily supply a word in connection with the'whole sentence it cannot be considered such an error as ought to receive consideration. ’ ’
In Hester v. State, 55 Tex. Cr. Rep. 374, 116 S. W. Rep. 1150, the charge alleged to be fatally defective is in the following language: “You are instructed that the laws of our state presume a man to be innocent until his guilt is established beyond a reasonable by legal evidence.” In considering this point the court said: “We think the omission is such a one as in the nature of things would have been supplied by any jury of ordinary intelligence, and, in view of the statement of the court, that he in fact read the charge as if the word ‘doubt’ had been in it, we do not think appellant was injured by this omission. ’ ’
In the case of Green v. State, 52 Tex. Cr. Rep. 44, 105 S. W. Rep. 205, the following charge was given by the trial judge: ' “If you believe from the evidence beyond a reasonable doubt that the defendant, with the intent to kill, struck the said Dennis Ore with a piece of wood, and thereby killed him, but at the time of so doing the said Dennis Ore had made an attack on him, but you find that the said defendant was not justified in so doing on the grounds of self-defense as that law is given to you in this charge, but you believe that such attack of said Ore on defendant *200under all the facts and circumstances in evidence in this case would commonly have produced a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the .......... incapable of cool reflection, then such attack would be adequate cause to reduce the killing to the grade of man-slaughter. ’ ’ The giving of the charge was assigned as error. In considering the point the appellate court said: “Appellant insists that the omission of the word ‘mind’ in. the above blank renders the charge unintelligible. We do not think the jury could possibly have been misled by this charge. Evidently, in reading the charge, the learned trial court read the word ‘mind’ in the blank complained of, and whether he did or did not, the mind of any juror would instinctively, in the light of the context, insert the word ‘mind,’ knowing that it was the sheerest inadvertence that omitted the word. ’ ’
In a certificate sent to this court by the trial judge he states “that in reading said charges to the Jury as required by law, said paragraph of said charge was read and pronounced to the jury as if the said word ‘design’ was there and I read and used the word ‘design’ immediately after the word ‘premeditated’ as contained in said charge and paragraph. That by inadvertence I overlooked the fact that the word ‘design’ was not in the said charge as typewritten that this was by reason of inadvertence and the force of habit in using the word ‘ design ’ immediately after the word ‘premeditated’ in that connection.” But this certificate was made many weeks after the bill of exceptions had been settled and signed. If it is an amendment to the bill of exceptions that cannot be considered (Exporters of Mfgrs. Products v. Butterworth-Judson Co., U. S. Adv. Ops., May 15, 1922, p. 392) it can, however, be looked-to for confirmation of the soundness of the process which leads *201to the conclusion prompting me to dissent from .the opinion of the court reversing the judgment.
Whitfield, J., concurs in this dissent.