I am unable to concur in the enunciations contained in the opinion prepared by Mr. Justice TERRELL upon which the conviction of the appellant Smith is affirmed.

The information charges: "that John Smith late of the County of Hillsborough aforesaid, in the State aforesaid, on the 25th day of August in the year of Our Lord one thousand nine hundred and thirty-nine, with force and arms at and in the County of Hillsborough aforesaid, unlawfully and feloniously and from a premeditated design to effect the death of one Willie Noriega, did make an assault on and upon the said Willie Noriega with a deadly weapon, to-wit a pistol, and in furtherance of said assault the said John Smith did shoot off and discharge said pistol at and *Page 195 toward him, the said Willie Noriega, thus and thereby inflicting divers, severe and serious wounds in, on and upon the body and limbs of him, the said Willie Noriega, and J.W. Chancey whose Christian name is to the Solicitor unknown, late of the County of Hillsborough aforesaid, in the State aforesaid, at the time of committing of the felony aforesaid to-wit, on the 25th day of August, in the year of Our Lord, one thousand nine hundred thirty-nine, with force and arms at and in the County of Hillsborough aforesaid, was then and there unlawfully and feloniously present, and did unlawfully and feloniously aid and abet, counsel, hire and otherwise procure the said John Smith to do and commit the said felony, in the manner and form aforesaid, against the form of the Statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the State of Florida;"

The information is insufficient to charge Chancey with the offense of assault to commit murder in the first degree because it does not charge that Chancey entertained a premeditated design to effect the death of the person assaulted or of any other person.

Where it is attempted to charge one with the offense of murder in the first degree or with assault with intent to commit murder in the first degree, it is essential to allege and prove that the person charged at time the alleged assailant made such assault did so from and with a premeditated design to effect the death of the person assaulted and this is true whether the charge be made against one as principal in the first degree or principal in the second degree. See Henry v. State, 81 Fla. 763, 89 So. 136, and cases cited. *Page 196

As the information did not charge Chancey with having participated in the assault from and with a premeditated design to effect the death of the person assaulted, or (to so effect the death) of any one else, a verdict of conviction of Chancey of the offense of assault to commit murder in the first degree can not be supported by this information.

The information is entirely sufficient to charge Chancey with the offense of assault to commit murder in the second degree and, therefore, was not vulnerable by motion to quash.

Aside from this, the Court charged the jury as follows:

"In the event you should find both defendants guilty of any of the offenses embraced in the information, it would not be permissible under the information or under the law to find one of them guilty of one of the offenses embraced in the information and to find the other one guilty of some other one of the offenses embraced in the information, because if the principal in the first degree is guilty, and the principal in the second degree is guilty, if they are both guilty, they must be guilty of the same offense."

This charge was clearly erroneous because the law is well settled that in a case where one person is charged with the commission of a homicide as principal in the first degree and another is charged with the commission of the same homicide as principal in the second degree either or both may be convicted of any offense coming within the charge of the information or indictment against such accused. The principal in the second degree may be tried before the principal in the first degree and the person charged as principal in the second degree may be tried and *Page 197 convicted even if the principal in the first degree has been acquitted of the charge. See Croft v. State, 117 Fla. 832,158 So. 454; Galloway v. State, 47 Fla. 32, 36 So. 168; Henry v. State, 81 Fla. 763, 89 So. 136; McCall v. State, 120 Fla. 707,163 So. 38; Green v. State, 40 Fla. 191, 23 So. 851.

This charge was prejudicial to the defendants and constituted reversible error.

The judgment should be reversed.

ADAMS, J., concurs.