The Chief-Justice
delivered the opinion of the court:
The plaintiff in error was indicted for murder at a special term of the Circuit Court for Polk county, in January; 1887, John C. Newcastle being the victim. On arraignment at the succeeding May term there was a plea of not guilty, then a trial and conviction of murder in the second degree. A motion for a new trial was made, which the •court denied; and then a motion in arrest of judgment, which was also denied.
[170]*170Before proceeding to other questions, we will dispose of that involved in the motion for arrest of judgment, the denial of which is assigned for,error. This motion is based on the ground that there is not sufficient record evidence-in the case that an indictment was found by the grand jury and returned by them into,court to authorize the (rial — • the defect being that the minutes of the court do not show that the grand jury returned any indictment into court against the plaintiff in error. That, is true as to the minutes; but what does appear in the case is an indictment in the usual form by grand jurors of the county of Bulk, charging against plaintiff in error the murder of Newcastle, and signed by “ George B. Sparkman, acting State Attorney for the Sixth Judicial Circuit of the State of Florida, prosecuting for said State.” On the indictment are these endorsements: “ A true bill ” — “John C Blount, Foreman." “ Filed -January 27th, 1887, W. H. Johnson, Clerk.'" While the proceedings of the court show no other entry than this of the return of the indictment into open court, the record before us(the Clerk speaking) recites that “on the 27th day of January, 1887, came * * the grand jurors and iiled in (said) Circuit Court a hill of indictment against the defendant,” &c., and then gives a copy of the same. But the record proper does show that Sparkman was duly appointed acting 'State Attorney for the special term at which the indictment was found; that Blount was the foreman of the grand jury for that term; that Johnson was the Clerk of the court, and that the court was in session January 27th, 1887; and shows further that on that day the ease was docketed and set for trial.
The question presented is whether the facts as they thus appear constitute sufficient record evidence of the return of the indictment into court, or whether a formal entry in the minutes is necessary to show such return ? There is noth[171]*171ing in our statutes that requires this formal entry. Section 3, McClellan’s Digest, p. 442, only directs that “all indictments shall be signed by the prosecuting attorney, and endorsed on the back by the foreman of the grand jury, when * found — ‘ a true bill.’” That is done in this case. How the indictment gets into court and gets on the files is not provided for by any specific direction, but is left to the established practice oi the courts for ages, which is by the appearance of the grand jurors before the court, their tender of the indictment to-the court, and its reception by the clerk — the official of the court for that purpose — all of which is presumed to have been observed in this case, in the absence of any allegation or pretense to the contrary. The better practice would be that which is usually followed, to make a formal entry of the return of the indictment in the minutes; but all the authorities do not sustain the contention that this is absolutely necessary.
In Collins vs. The State, 13 Fla., 651, Judge Westcott, reviewed thequestion at considerable length, citing authorities of great respectability to sustain the view that such record evidence is not essential, and though the precise question now before ns as raised in the lower court has not been decided, the evident inclination manifested by our decisions is against the essentiality of such record evidence. Bass vs. The State, 17 Fla., 685, and citations.
The motion hero does not controvert the actual presentment. of the indictment in open court by the.grand jury, but merely avers the omission of the proper entry of such presentment. If the issue of such presentment was squarely raised by the motion we do not know but that we should arrest the judgment, but as it is not, our conclusion in view of the evident tendency of our former decisions and the authorities cited in them is to affirm the action of the Circuit Judge iu denying the motion as made.
[172]*172Assuming, as we do, that the motion in arrest of judgment was denied for the reason that the indictment was formally presented in open court by the grand jury, our -opinion is that the record should have been amended, nunc pro tunc, so as to show such tact. State vs. Pearce, 14 Ind., 426; State vs. Clark, 13 Mo., 432; Green vs. State, 19 Ark., 189; Freeman on Judgments, secs. 71, 72.
We come now to the errors assigned as having been committed during the progress of the trial, the principal one -of which is the action of the court in denying the motion fora new trial. The motion was based on the usual general grounds with this addition : that “ the evidence in the case did not warrant the jury in convicting the defendant of murder in the second degree.”
We find nothing in the record to lead us to pronounce the court in error on the other grounds. As to this, the -evidence so far as material, is that the plaintiff in error lived with Newcastle and his wife, and that on the night of the 9th of January, 1887, Newcastle was found dead in his bed. Ilis death was caused by a gun-shot wound penetrating the skull under the right eye about an inch below the •orbit, passing backwards to a point about two inches under the left ear. There were powder stains around the opening of the wound, where the face was badly burnt. How and by whom the wound was inflicted does not appear from .any positive testimony of witnesses present. The evidence on the subject is that of a physician who was called about eleven o’clock that night to see Mrs. Newcastle. He says that the plaintiff in error came for him, and while at his house said he had shot Mr. Newcastle. Either then or soon afterwards the full statement of plaintiff in error was “that Newcastle was choking Mrs. Newcastle, and threatened to kill them both when he heard him (plaintiff in error) com[173]*173ing down the stairs, which he did in answer to Mrs. Newcastle’s calls. She called to him to know if he was going to stay up. stairs and let Newcastle kill her. Then he got up and come down stairs, and Newcastle said that if you come down here I will kill you both, and he (plaintiff in error) then picked the gun up and shot him.”
This is all the evidence bearing on the question as to-whether the jury were right in finding a verdict of murder in the second degree. Does it warrant that verdict? We think not.
The statute of this State in regard to homicides, makes-seven degrees of the offence, three of murder and four of manslaughter. It is unnecessary to recite these in detail here, but it is not to be forgotten that every degree has its own distinguishing features, and that facts which bring a case within either must be met by a verdict of guilt in that special degree.
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The Chief-Justice
delivered the opinion of the court:
The plaintiff in error was indicted for murder at a special term of the Circuit Court for Polk county, in January; 1887, John C. Newcastle being the victim. On arraignment at the succeeding May term there was a plea of not guilty, then a trial and conviction of murder in the second degree. A motion for a new trial was made, which the •court denied; and then a motion in arrest of judgment, which was also denied.
[170]*170Before proceeding to other questions, we will dispose of that involved in the motion for arrest of judgment, the denial of which is assigned for,error. This motion is based on the ground that there is not sufficient record evidence-in the case that an indictment was found by the grand jury and returned by them into,court to authorize the (rial — • the defect being that the minutes of the court do not show that the grand jury returned any indictment into court against the plaintiff in error. That, is true as to the minutes; but what does appear in the case is an indictment in the usual form by grand jurors of the county of Bulk, charging against plaintiff in error the murder of Newcastle, and signed by “ George B. Sparkman, acting State Attorney for the Sixth Judicial Circuit of the State of Florida, prosecuting for said State.” On the indictment are these endorsements: “ A true bill ” — “John C Blount, Foreman." “ Filed -January 27th, 1887, W. H. Johnson, Clerk.'" While the proceedings of the court show no other entry than this of the return of the indictment into open court, the record before us(the Clerk speaking) recites that “on the 27th day of January, 1887, came * * the grand jurors and iiled in (said) Circuit Court a hill of indictment against the defendant,” &c., and then gives a copy of the same. But the record proper does show that Sparkman was duly appointed acting 'State Attorney for the special term at which the indictment was found; that Blount was the foreman of the grand jury for that term; that Johnson was the Clerk of the court, and that the court was in session January 27th, 1887; and shows further that on that day the ease was docketed and set for trial.
The question presented is whether the facts as they thus appear constitute sufficient record evidence of the return of the indictment into court, or whether a formal entry in the minutes is necessary to show such return ? There is noth[171]*171ing in our statutes that requires this formal entry. Section 3, McClellan’s Digest, p. 442, only directs that “all indictments shall be signed by the prosecuting attorney, and endorsed on the back by the foreman of the grand jury, when * found — ‘ a true bill.’” That is done in this case. How the indictment gets into court and gets on the files is not provided for by any specific direction, but is left to the established practice oi the courts for ages, which is by the appearance of the grand jurors before the court, their tender of the indictment to-the court, and its reception by the clerk — the official of the court for that purpose — all of which is presumed to have been observed in this case, in the absence of any allegation or pretense to the contrary. The better practice would be that which is usually followed, to make a formal entry of the return of the indictment in the minutes; but all the authorities do not sustain the contention that this is absolutely necessary.
In Collins vs. The State, 13 Fla., 651, Judge Westcott, reviewed thequestion at considerable length, citing authorities of great respectability to sustain the view that such record evidence is not essential, and though the precise question now before ns as raised in the lower court has not been decided, the evident inclination manifested by our decisions is against the essentiality of such record evidence. Bass vs. The State, 17 Fla., 685, and citations.
The motion hero does not controvert the actual presentment. of the indictment in open court by the.grand jury, but merely avers the omission of the proper entry of such presentment. If the issue of such presentment was squarely raised by the motion we do not know but that we should arrest the judgment, but as it is not, our conclusion in view of the evident tendency of our former decisions and the authorities cited in them is to affirm the action of the Circuit Judge iu denying the motion as made.
[172]*172Assuming, as we do, that the motion in arrest of judgment was denied for the reason that the indictment was formally presented in open court by the grand jury, our -opinion is that the record should have been amended, nunc pro tunc, so as to show such tact. State vs. Pearce, 14 Ind., 426; State vs. Clark, 13 Mo., 432; Green vs. State, 19 Ark., 189; Freeman on Judgments, secs. 71, 72.
We come now to the errors assigned as having been committed during the progress of the trial, the principal one -of which is the action of the court in denying the motion fora new trial. The motion was based on the usual general grounds with this addition : that “ the evidence in the case did not warrant the jury in convicting the defendant of murder in the second degree.”
We find nothing in the record to lead us to pronounce the court in error on the other grounds. As to this, the -evidence so far as material, is that the plaintiff in error lived with Newcastle and his wife, and that on the night of the 9th of January, 1887, Newcastle was found dead in his bed. Ilis death was caused by a gun-shot wound penetrating the skull under the right eye about an inch below the •orbit, passing backwards to a point about two inches under the left ear. There were powder stains around the opening of the wound, where the face was badly burnt. How and by whom the wound was inflicted does not appear from .any positive testimony of witnesses present. The evidence on the subject is that of a physician who was called about eleven o’clock that night to see Mrs. Newcastle. He says that the plaintiff in error came for him, and while at his house said he had shot Mr. Newcastle. Either then or soon afterwards the full statement of plaintiff in error was “that Newcastle was choking Mrs. Newcastle, and threatened to kill them both when he heard him (plaintiff in error) com[173]*173ing down the stairs, which he did in answer to Mrs. Newcastle’s calls. She called to him to know if he was going to stay up. stairs and let Newcastle kill her. Then he got up and come down stairs, and Newcastle said that if you come down here I will kill you both, and he (plaintiff in error) then picked the gun up and shot him.”
This is all the evidence bearing on the question as to-whether the jury were right in finding a verdict of murder in the second degree. Does it warrant that verdict? We think not.
The statute of this State in regard to homicides, makes-seven degrees of the offence, three of murder and four of manslaughter. It is unnecessary to recite these in detail here, but it is not to be forgotten that every degree has its own distinguishing features, and that facts which bring a case within either must be met by a verdict of guilt in that special degree. The offence each degree marks out is a separate offence from that marked out by either of the other six, to be determined as the statute prescribes “ according to the facts and circumstances of each case.” In the present case the offence the jury fouud is defined in the statute thus: the killing of a human being, “when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree.”
To understand what this means, let us consider it in conneetion with the other degrees of murder as defined in the statute. The killing of a human being, “ when perpetrated from a premeditated design to effect the death of the person killed, or any human being, shall be murder in the first degree.” “ When perpetrated without any design to-effect death, by a person engaged in the commission of any [174]*174felony, it. shall ho murder in the third degree.” The first evidently requires that the killing should ho in pursuance of a premeditated design to effect, the death of some human being, though the pers m killed was not the one intended. Comparing this with the second, one chief difference is thar the element of premeditation is essential in the funner, hut not in file lnrter, though if it exist in the latter it is not to be directed against, any particular individual. Another difference is, that the design in the first need not be directed against the person actually killed, but nevertheless must he against some particular individual; while in the second it is not only not necessary that the design should be aimed at any particular individual, hut if the design be to kill, it must come from a general deadly intent, and it must lie executed by.an act imminently dangerous to others, evincing a depraved mind, regardless of human life, lint in the second it is not required in all cases, that there "hould he an intent to kill. For instance, if a man out of enmity to the owner of a vessel, and desiring to do him injury, should use dynamite, or other explosive to destroy the vessel while he knew passengers were aboard, and death should ensue,'to one or more of them, that would be a case o! murder in this degree. Every element of the degree, the imminently dangerous act, and the depraved mind, regardless of human life, would be present, although the intent was to destroy property, not life.
Without further analysis to distinguish these two degrees, we refer to Darry vs. The People, 10 N. Y. R., 120, for a full and exhaustive discussion of the subject. In that State those degrees are subdivisions of the first, but the marks of distinction are the same ; and the reasoning and decision of that case sustains our conclusion in this.
But it may be asked, if the second degree includes a [175]*175case ill which there may be no design to kill, bow does such a case differ from one in the third degree which is a killing without any design to effect death, by a person engaged in any felony? For the purposes of this case as it is presented here it. is not important to answer this question, and'we will content ourselves with the general remark that the character of the act and the state of mind o. the offender necessary to the second is excluded from tile third, ‘¡caving the distinction to rest upon a felony in the latter that is not aggravated by imminent danger to others and by depravity of mind, reckless of human life.
In deciding that the evidence in this case does not warrant ti verdict of murder in the second degree, we refrain from prejudging a future trial, by any expression of opinion as to the degree of the offence of homicides that evidence does point to.
In the discussion of this point, the Attorney-General dis-seats from what is said in Potsdamer vs. State, 17 Fla., 396, 904, of the conviction of an offence of a minor grade having tiie effect of an acquittal of the higher grade charged in the indictment. When a ease shall come botore us in which subsequent to a verdict of guilt of the lower grade, a new trial has been granted and has been followed by a conviction of the higher grade of the offence, we will foul called upon to express an opinion. No such circumstances existed in Potsdamer’s case.
As to other errors assigned, the first sets up objection to the admission of the testimony oi the witness Griffin in regard to statement made by Mrs. Newcastle at. the time of the arrest of the plaintiff in error. There is nothing of any consequence in those statements, except as showing the affectionate relations between the two, and her distress on account of his being taken away. What she said being [176]*176in his presence and hearing may be significant in connection with the question of motive for shooting Newcastle* and in that view was admissible. And the same may be said in regard to the third error assigned, which was the refusal of the court to strike out testimony of witnesses ITefford, Strong and Osborne, intended to show improper relations between the plaintiff in error and Mrs. Newcastle. That was legitimate testimony towards discovering the motive of the plaintiff in error for shooting Newcastle. There was some looseness in it, but the object was not amiss.
The remaining error assigned is in the admission of the testimony of a brother of Newcastle as to a letter or letters he had received from the deceased. The object was-somewhat the same as in the admission of the other testimony, by showing complaint because of misconduct of the-wife. But such testimony was clearly inadmissible. The letters themselves should have been produced, or their non-production accounted for, if proper evidence at all. We think, though, they could not have been admitted because while the acts and conduct of the wife might be enquired into for the reason we have already given, this cannot be done by statements of the husband to a third party, whether by letter or otherwise, not communicated to her, or shown to have had any part or influence in the-subsequent tragedy. This method of getting at the acts and conduct of parties to find a motive for the deed is too remote and unreliable. Weyrich vs. The People, 89 Ill., 90.
For the errors herein declared, the judgment is reversed and the case remanded for a new trial.