J. H. SPERO
v.
STATE
Plaintiff in error was indicted charged with the offense of murder in the first degree. He was convicted of murder in the second degree. The evidence as' disclosed by the record was ample to have sustained a verdict and judgment of murder in the first degree.
We find no reversible error disclosed by the record. The judgment should be affirmed. It is so ordered.
Affirmed.
Whitfield and Buford, J. J., concur.
Davis, C. J., and Terrell, J., concur in the conclusion.
(concurring in conclusion).—When this case was here before on writ of error taken in habeas corpus proceeding had prior to indictment of Spero (See Spero v. State, 111 Fla. 794, 149 Sou. Rep. 663), we held in effect *772that the evidence was not so conclusive against Spero as to warrant denial of bail, as- for a capital crime. I think a preponderance of the evidence in the present case is against first-degree murder but that the evidence as a whole may be regarded as sufficient to sustain the verdict of second-degree murder which was returned.
Davis, C. J.
(concurring in conclusion).—When this case was here before on writ of error taken in habeas corpus proceeding had prior to indictment of Spero (See Spero v. State, 111 Fla. 794, 149 Sou. Rep. 663), we held in effect that the evidence was not so conclusive against Spero as to warrant denial of bail, as-for a capital crime. I think a preponderance of the evidence in the present case is against first-degree murder but that the evidence as a whole may be regarded as sufficient to sustain the verdict of second-degree murder which was returned.