The indictment in this case reads as follows:

"The Grand Jurors of the State of Florida, inquiring in and for the body of the County of Charlotte, upon their oaths present that I. J. Patrick, Sr., whose Christian name is to the Grand Jurors unknown, on the 21st day of September, 1932, at and in the County of Charlotte aforesaid, unlawfully and from a premeditated design to effect the death of one LEE EVANS, did kill Lee Evans by shooting him with a pistol; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida."

Section 7142, 5040 R. G. S., is as follows:

"Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter. (Ch. 1637, Sub.-Ch. 3, Aug. 6, 1868, Sec. 9.)"

At the trial evidence was adduced presenting as one of the State's theories of its case the accusation that if the accused did not himself kill the deceased, that by his own admissions he had assisted the deceased to kill himself. Thereupon the court charged the jury as follows:

"If you do not believe the defendant is guilty of murder in the second degree then you may consider whether he is guilty of manslaughter. *Page 435

"The court charges you that every person who deliberately assists another in the commission of self murder shall be guilty of manslaughter. If you find from the testimony in this case beyond a reasonable doubt that the deceased, Evans, took his life by shooting himself with a pistol at the time alleged in the indictment in this case and the jury further believe from the testimony in this case beyond a reasonable doubt that the defendant, Patrick, was present and actively aiding and assisting the deceased man to kill himself, with intent that the deceased should take his own life, then you will find the defendant guilty of manslaughter. If you find from the testimony in this case that the deceased, Evans, had determined to take his own life and had communicated that design or purpose to the defendant in this case and the defendant purposely met the deceased, with intent to assist and aid the deceased in killing himself, and further find that the defendant then and there did actively aid and render assistance in any manner to the deceased in taking his own life with intent on the part of the defendant that the deceased should take his own life then you will find the defendant guilty of manslaughter. On the other hand, if you find that the deceased took his own life but that the defendant, although present, rendered no assistance to the deceased in killing himself then the defendant would not be guilty."

So the question was presented to the trial judge whether a person can be convicted of manslaughter under an indictment charging murder in the first degree, upon evidence showing that defendant was guilty of deliberately assisting another in the commission of suicide in violation of Section 7142 C. G. L.,supra.

Undoubtedly a charge of ordinary manslaughter is embraced in an indictment for murder in the first degree. See *Page 436 7 Encyclopedic Digest Florida Reports, par 31D for authorities supporting the foregoing rule.

But do not think this rule applies to a case like this where the crime of manslaughter is made so only by a special statute attributing guilt of manslaughter to a special state of facts that without the special statute (Such as Section 7142 C. G. L., in this case) would not be manslaughter within the ordinary definition of manslaughter contained in Section 7141 C. G. L., 5039 R. G. S.

The majority opinion affirms the conviction on the theory that there is sufficient evidence to sustain a finding of guilt of manslaughter without regard to Section 7142 C. G. L., relating to assisting one to commit self murder. I could concur in this finding of the majority opinion but for the fact that the court below submitted the issues to the jury on the erroneous theory that one can be convicted of violating Section 7142 C. G. L., under an ordinary indictment for murder in the first degree.

My view is that the only reason for allowing a conviction for manslaughter to stand under an indictment for murder in the first degree is because the charge of the ordinary offense of manslaughter is comprehended in the ordinary charge of first-degree murder. But this reasoning cannot apply to a charge of assisting in self murder because that charge is a special one, not comprehended in the ordinary charge of murder in the first degree, and as such should be specially laid in the indictment.

So viewing the case, I respectfully dissent from affirmance under the circumstances.