The facts in this case are briefly as follows: The defendant and Mr. W. T. Cowles, the deceased, had an altercation over the telephone, in which hot words were passed between them, and an appointment was made to meet at Morgan's Garage on Main Street in Jacksonville, within a short time thereafter. This telephone conversation occurred about 3:45 P. M., and they met near the appointed place shortly after 4:00 o'clock. In the meantime, Mr. Cowles had gotten in touch with his son, Mr. Jack Cowles, and Mrs. South, a young married woman who had lodging in the home of Mr. W. T. Cowles, had telephoned her husband, and shortly after the meeting between the defendant and Mr. Cowles, Sr., young Mr. Cowles and Mr. South appeared on the scene. The defendant's attitude was conciliatory. He was endeavoring to explain the situation which brought on the altercation and to mollify Mr. W. T. Cowles and Mr. So.2d Whatever the merits of the altercation over the telephone, or the cause thereof, may have been, and whether the defendant was in the wrong or not, his attitude at the place of meeting on Main Street was that of a man who wished to avoid trouble. He was not the aggressor in the difficulty which arose there. Both the young Mr. Cowles and Mr. South claim to have struck the first lick. The elder Mr. Cowles was urging them on. A fight ensued in which the three men got the better of it, and during the course of it there was evidence that the elder Mr. Cowles struck the defendant *Page 769 on the head with an instrument of some kind. The defendant retreated into the street and precipitately fled to his automobile which was standing nearby, jumped in, and drove away as rapidly as possible. When he got to the corner, he turned and came back on the other side of the street. His testimony was that he found the street traffic blocked at the corner by a big truck and, rather than wait, he turned and came back on the other side of the street, intending to go home. About midway of the block, and about opposite the other side of Main Street where the difficulty had taken place, he drove up to the curb and came to a stop, and his wife got in the automobile. His testimony, and that of his wife, was that he saw his wife coming down the sidewalk and brought his car to a stop, calling to her to get in. Just at that time the three men who had attacked him came across the street toward him. When the elder Mr. Cowles had gotten within a few feet of defendant's automobile, someone shouted, "Kill him," and Mr. Cowles made a motion as if to draw something from inside the breast of his coat, which was buttoned up (which afterwards proved to be a small iron poker), and the defendant shot him, using a pistol which was in his automobile, and which he testified that he had been in the habit of keeping in his car. There was no evidence that he had this pistol at the time of the difficulty across the street, or that he had drawn or attempted to use a weapon of any kind during that difficulty.

Under the evidence in this case, I do not think that it can reasonably be said that this was a case where the persons involved engaged mutually in a combat. It appears that the combat was forced upon the defendant; that the deceased and his son and Mr. South were the aggressors in the difficulty, and because of what had transpired beforehand, they were determined to give the defendant a beating, and that the defendant, however wrong he may have *Page 770 been in regard to the matter which brought about the meeting, was anxious to avoid the fight. Under this state of the evidence, the Court erred in giving the following charge, which was excepted to by the defendant: "The Court further charges you, gentlemen, that where two persons engage mutually in combat, knowing that such combat might or would probably result in death or serious bodily injury, and one of the combatants kills the other to prevent death or serious bodily injury to himself, such combatant cannot plead that such killing was in self-defense. In such case there is mutual combat, and both combatants are aggressors, and neither can justify the taking of the life of the other without having honestly and bona fide declined the combat on his part and retreated." This charge was calculated to lead the jury to believe that the Court was of the opinion that there was evidence in the case upon which a jury would be justified in finding that the defendant had willingly engaged in a mutual combat, in such a way as to deprive him of setting up self-defense.

For the same reasons, I am inclined to believe that the Court erred in charging the jury further as follows: "But, if a combatant, after having retreated, returns to the combat for the purpose of renewing the same and as the result of such renewal of the combat, he slays his adversary to save his own life or to avoid great bodily harm he cannot avail himself of the plea of self-defense." There was, in my opinion, no evidence which would justify the jury in finding that the defendant, after having retreated, returned to the combat for the purpose of renewing the same. Both these charges were excepted to and assigned as error.

Nor can I escape the conclusion that the giving of these two charges was calculated to prejudice and injure the defendant, although the Court's charge as a whole, with one exception to be hereinafter noted, was a very able and *Page 771 fair charge and one which did credit to the learned judge who delivered it. The remaining error, if such it be, in the charge of the Court, concerns a question upon which this Court has several times been equally divided and involves no criticism whatever of the learned trial judge. It pertains to a question upon which there has long been a sharp division of opinion among our own and the appellate courts of a great many of our States; and that is, the meaning of the word "premeditation" as used in the statutory definition of murder in the first degree, which is, quoting from our own statute, Section 5035, Revised General Statutes: "The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being," etc.

The court, in its general charge, defined "premeditated design" as follows: "Now gentlemen, premeditated design to effect the death of a particular individual is a necessary ingredient in murder in the first degree, and this premeditated design to effect death must appear from the evidence to the exclusion of and beyond a reasonable doubt, otherwise the defendant cannot be convicted of murder in the first degree. Premeditated design to effect death as used in the statutes relating to homicide means an intent to kill formed before the act of killing, and of which intent the killing is the result. There is no prescribed length of time necessary to constitute 'premeditation.' It is sufficient if there was a fully formed purpose to kill and enough time for thought, for the mind of the defendant to have become fully conscious of the design to kill, formed before the act, and that the act was the result of this design." This part of the charge was not excepted to, though counsel for plaintiff in error urgently insists that the evidence in this case is not sufficient to show premeditation, and that mere intent before the act is not tantamount to premeditation within the *Page 772 meaning of the statute. Ordinarily, a defendant cannot claim the benefit of any error committed by the court in its charge which was not excepted to at the trial and assigned as error in this court, but this court will nevertheless take note of fundamental errors, vitally affecting the essential rights of a defendant, where they appear upon the record, although not assigned as error. The particular portion of this charge which impresses me as being erroneous is the sentence reading: "Premeditated design to effect death as used in the statutes relating to homicide means an intent to kill formed before the act of killing, and of which intent the killing is the result." If this definition be erroneous, it can hardly be said that the remainder of the paragraph is sufficient to correct it.

It is true that this definition is sustained by the majority opinion, and by the first headnote in the case of Ernest v. The State, 20 Fla. 383, cited in the majority opinion, but my thought is that this definition reduces the definition of murder in the first degree to the level of manslaughter. If mere "intent before the act" constitute premeditation, what distinction remains, so far as the mental state back of the act is concerned, between the two degrees of homicide, murder and manslaughter, which it was the purpose of the statute to distinguish and separate? Even when one kills in heat of passion under such circumstances as to constitute manslaughter, there is nevertheless present "the intent before the act;" yet, assuredly, it could not be claimed that such intent, amounted to premeditation. Our statute makes allowance for the frailities of human nature and defines the degrees of unlawful homicide, as murder in the first degree, murder in the second degree, murder in the third degree, and manslaughter, the punishment ranging from death for murder in the first degree to a term of imprisonment or fine for manslaughter. Assuredly, there must be some difference in the intent in murder in the first degree *Page 773 and the intent in manslaughter when there is such a marked difference in the degree of punishment inflicted. Certainly, when the statute uses the words "premeditated design to effect the death of the person killed," in defining murder in the first degree, it meant something more than a mere intent to kill formed before the act of killing. While such intent to kill before the act is necessarily embraced within the premeditated design to effect death, referred to in the statute, it is not synonymous therewith; there must be something more; and, therefore, to instruct a jury that premeditated design to effect death as used in the statute, means an intent to kill formed before the act of killing, constitutes a failure to give full definition of premeditated design, and tends to mislead the jury as to the complete meaning of such term; and as this pertains to that very element which differentiates murder from manslaughter, and which means that in the one case the offender should be punished with death or imprisoned for life, or in the other to merely get a term in the penitentiary or a fine, it is a matter of vital importance, both to the public and to the accused.

This can hardly be considered a thoroughly settled proposition in this jurisdiction. Subsequently to the Ernest case, this court, in the case of Cook v. the State, 46 Fla. 20, 35 So. 665 divided on this question. Chief Justice Taylor and Justices Shackleford and Hocker were of the opinion that a charge similar to the one here involved was erroneous and misleading as a definition of murder in the first degree, while Justices Carter, Maxwell and Cockrell held the contrary opinion. Both sides of this difficult question were presented with exceptional ability in the several opinions written in that case, and it would be presumptuous on my part to endeavor to add anything thereto. Again this question came up in the case of Keigans v. The State, 52 Fla. 57, 41 So. 886, and again the court *Page 774 divided equally on the question, Justices Taylor, Hocker and Parkhill holding the charge erroneous, and Chief Justice Shackelford and Justices Cockrell and Whitfield per contra. And again in the case of Stokes v. The State, 54 Fla. 109, 44 So. 759, a similar charge was involved, and again the Court was divided, the personnel being the same as in the Kiegans case. In the case of Miller v. The State, 75 Fla. 136, 77 So. 669, the question involved was whether the evidence was sufficient to show a premeditated design to effect the death of the person killed and thus to support the verdict of murder in the first degree. In that case Mr. Justice ELLIS, now Chief Justice, reviewed the decisions above referred to, and the majority of the court held that: "Premeditation is an essential element in the crime of murder under the statutes of this State. It should be alleged in the indictment and proved beyond a reasonable doubt at the trial. The mere fact of the killing does not raise a presumption of premeditation such as makes the offense murder in the first degree and cast upon the defendant the burden of showing that it was not. Something more than mere intention to kill must be shown; it is necessary that some circumstances admissible as evidence be shown from which may be legitimately inferred the fact of premeditation." Again the court was divided, though not evenly; Chief Justice BROWN and Justice TAYLOR concurring, and Justices WHITFIELD and WEST dissenting.

It is with some trepidation that I enter upon the discussion of this much mooted question in any degree whatsoever, but in doing so, it is not my purpose to repeat the argument and reasoning which have already been permanently enrolled upon the records of this court by abler hands. Suffice it to say that to my mind the opinion of Mr. Justice Hocker, concurred in by Chief Justice Taylor and Mr. Justice Shackelford, in the case of Cook v. The State, supra, shows that the charge hereinabove quoted is *Page 775 erroneous, though similar charges have been used by very eminent and learned courts, and no doubt by the majority of our circuit judges, for many years, nevertheless, my conviction is that by charges of this nature the statutory phrase "premeditated design" has been emasculated so as to mean merely design, or intent, thus overlapping the definition of murder in the first degree with that of manslaughter, and defeating the purpose of the Legislature when, in defining murder in the first degree, they used the very potent and significant words above quoted, and which are not used in any other portion of the statutes. As was said in Cook v. The State, supra: "It cannot be said that we are disturbing a settled and clear construction of the statute, where there is no settled and clear construction discriminating the meaning of what is called the intentional killing in murder from the intentional killing which may exist in manslaughter."

The word design may be in a sense synonymous with intent, or intention; but the word premeditation is not. Webster tells us that the word premeditate is derived from the Latin words prae, meaning before, and meditari, to meditate, and defines such word, as a transitive verb, as meaning, "to think on, and revolve in the mind beforehand; to contrive and design previously; as to premeditate robbery." The word premeditate, as an intransitive verb is defined thus: "To think, consider, deliberate, or revolve in the mind, beforehand." The noun, premeditation, is defined as: "Act of meditating beforehand; previous deliberation as to action; forethought; planning or contriving. Thinking of beforehand." The same authority defines the word design, as a noun, in part as follows: "A plan or scheme formed in the mind of something to be done; preliminary conception; idea intended to be expressed in a visible form or carried into action; intention; purpose; often used in a bad sense for evil intention or purpose; *Page 776 a scheme; plot." It would seem, therefore, that the words "premeditated design" as used in the statute defining murder in the first degree, necessarily imply some degree of cool deliberation, as distinguished from a design which is the sudden, rash conception of a mind under the sway of heat or passion, resulting from some sudden and sufficient provocation; that is, the mind must be sufficiently cool and self-possessed to consider and contemplate the nature of the act then about to be done. This does not mean that the law should attempt to prescribe the length of time which it will require for the mind to form such premeditated design, for it is obvious that this would differ with different individuals, and the mind of man often operates with such lightning-like rapidity as to render any effort at time-measurement of its operations impossible for all practical purposes. As was well said in Carter v. The State, 22 Fla. 553, 558: "The law does not prescribe what length of time shall intervene between the formation of the design to effect the death of another and the execution of such design. It would indeed be impracticable to do so. All it requires is that there be such an interval of time between the intent and the act as will repel the presumption that it was done upon a sudden impulse, conceived and executed almost instantaneously, or that its execution followed so quickly after the design as to show that the mind was not fully conscious of its own intention." See also Olds v. State,44 Fla. 452, 33 So. 296; Commonwealth v. Drum, 58 Penn. 9, 16; 29 C. J. 1116, and cases cited.

After a careful reading of the voluminous record in this case, I am not by any means satisfied that there was sufficient evidence of premeditation to authorize the verdict of first degree murder, and am inclined to the opinion that the defendant's motion for new trial should therefore have been granted.

TERRELL, J., concurs in the conclusion. *Page 777