TOM MCCRAY, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Whitfield, P.J.

Writ of error was taken to a judgment 'of conviction of murder in the second degree upon an indictment charging that Tom McCray “did unlawfully and from a premeditated design to effect the death of one John Dean,” fatalfy shoot John Dean.

One who kills one person through mistaken identity, while attempting and intending with premeditated design to kill another person, is guilty-of murder in the first de gree, and the indictment in such a case properly alleges that the premeditated design was to effect the death of the person actually slain, since the law transfers the felonious intent in such a case to the actual object of his assault and the homicide so committed is murder in the first degree. Hall v. State, 70 Fla. 48, text 49, 69 South. Rep. 692.

If the killing of the party intended to be killed would, under all the circumstances, have been excusable or justifiable homicide upon the theory of self-defense, then the unintended killing of a bystander, by a random shot fired in the proper and prudent exercise of such self-defense is also excusable or justifiable. Brown v. State, 84 Fla. 660; 94 South. Rep. 874.

If the killing of the intended victim in such a case would have been reduced by the circumstances to murder in the second or third degree, or to manslaughter in any of the degrees, then the unintentional and accidental killing of a bystander resulting from any act designed to take effect upon the intended victim, would be likewise reduced to the same grade of offence as would have followed the death of the victim intended to be killed. Pinder v. State, 27 Fla. 370, text 372, 8 South. Rep. 837; Capio v. State, 27 N. M. 265, 199 Pac. Rep. 1012, 18 A. L. R. 914 and notes.

The defendant testified that he thought Tom Dean had a gun and that ‘ ‘ I thought he was getting ready to shoot, so I got my gun out and had it in my hand like this by my hip (indicating) and his brother run into it and hit iny firm and I shot that man from my side with the gun just like this (indicating) but I didn’t mean to do it — didn’t mean to hit John Dean at all — I shot to try to shoot the man who tried to shoot me, but I beat him to it. When 1 shot I thought he would shoot me, and T dropped to my knees. ’ ’

Other evidence tended to refute this testimony, but the defendant had a right to a consideration of his testimony by the jury under appropriate instructions as to the law applicable to the different phases of the evidence.

The court charged the jury before argument of counsel as directed by the statute, Chapter 9364, Laws of 1923; Smithie v. State, decided at the last term; and the charges given, considered as a whole, are not subject to the criticisms made of them.

Among the charges given was the following:

‘‘ ‘ Further, if you find from the evidence, beyond a reasonable doubt'that the defendant fired, then and there intending to kill Thomas Dean, but that the defendant actually killed John Dean by said shot, then you may find the defendant guilty of murder in the first degree or murder in the second degree or manslaughter, as you may further find beyond a reasonable doubt, if the evidence warrants it, under these instructions; the defendant may, if the evidence warrants it, be convicted either of murder in the first degree, murder in the second degree, or manslaughter, of be acquitted.’ ”

The court properly refused to give the following instruction:

“'Gentlemen of the jury, you are instructed -that the defendant is not charged in the indictment with having intended to kill Thomas Dean, but that said indictment specifically charges that the premeditated design' was against John Dean, therefore gentlemen it is ineumbept upon the State to prove the premeditated design as alleged in the indictment, in order to warrant a conviction.’ ”

The bill of exceptions shows that “after argument of both counsel for defendant and by the State’s attorney, the following charge was again given by the court after closing remarks of Mr. Farrington for the defendant, to the effect that under the indictment the State must prove the' premeditated design to kill John Dean, or else there must be a verdict of not guilty, and that proof of the premeditated design to kill Thomas Dean, and the accidental killing of John Dean in the attempt to kill Thomas Dean, would not warrant a verdict of guilty: “ ‘Gentlemen of the jury, you have heard the evidence and argument of counsel, and I just want to read one paragraph of my charge again ; ‘Further if you find from the evidence, beyond a reasonable doubt, that the defendant fired then and there intending to kill Thomas Dean, but that the defendant actually killed John Dean by said shot, then you may find the defendant guilty of murder in the first degree, or murder in the second degree, or manslaughter, as you may further find beyond a reasonable doubt if the evidence warrants it under these instructions.’ ”

Without deciding whether under the statute, Chapter 9364, Laws of 1923, and under circumstances that may be shown in a particular case, the repetition to the jury of proper charges after the arguments of counsel would be material error, if error at all; it does appear in this case that in repeating one of the charges given to meet the argument of counsel for the defendant as to the law applicable to the case, the charge so singled out and repeated, gave emphasis to an incomplete statement of the law, that reasonably might have influenced the jury in finding a verdict of guilt. The charge repeated did not include the statement that “the defendant, may, if the evidence warrants it, be convicted either of murder in the first degree, murder in the second degree, or manslaughter, or be acquitted;” but the repeated charge stated only the offenses which the' defendant may be convicted without stating that he may be acquitted under the circumstances stated in the full charge; and the reference in the repeated charge to “these instructions” did not make it clear to the jury that the defendant might be entitled to-an acquittal if the jury should find facts constituting a valid defense under the law as was set out in the charges given as an entirety. In view of the whole record a new trial should he awarded. Brown v. State, 84 Fla. 660, 94 South. Rep. 874.

Other rulings complained of probably will not occur on another trial.

Reversed.

West and Terrell, J. J., concur. Taylor, C. J., and Browne, J., concur in the opinion.