¶1In this cause Mr. Chief Justice WHITFIELD, Mr. Justice TERRELL and Mr. Justice BROWN are of the opinion that the judgenmt of the Circuit Court should be affirmed, while Mr. Presiding Justice ELLIS, Mr. Justice BUFORD and Mr. Justice DAVIS are of the opinion that the said judgment should be reversed for a new trial. When the members of the Supreme Court sitting six members in a body and after full consultation, it appears that *704 the members of the Court are permanently and equally divided in opinion as to whether the judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed; therefore it is considered, ordered and adjudged under the authority of State, ex rel. Hampton, v. McClung, 47 Fla. 224, 37 So. Rep. 51, that the judgment of the Circuit Court in this cause be and the same is hereby affirmed.
¶2Affirmed.
¶3WHITFIELD, C.J., and ELLIS, TERRELL, BROWN, BUFORD and DAVIS, J.J., concur.
¶4Plaintiff in error was indicted and tried for murder in the first degree and convicted of manslaughter. On writ of error to this court the judgment was reversed because of an erroneous charge. Patrick v. State, 117 Fla. 432, 158 So, 101. A new trial resulted in a second conviction of manslaughter and a sentence to hard labor for ten years in the State penitentiary. The latter judgment is here for review. *706
¶5On second writ of error it is contended that the evidence is insufficient to support the verdict and judgment, that the court erred in refusing to permit certain evidence proffered by the defendant to go to the jury, that error was committed in denying the defendant the closing argument to the jury, that error was committed in the refusal of the court to exclude remarks of the State's attorney made in the presence of the jury, and that the court's charge in reference to premeditation was erroneous.
¶6At the trial the State's theory of the case was that the defendant shot Lee Evans, the deceased, through the head and murdered him for the purpose of robbery. The defense was that the deceased killed himself and that he (defendant) was present by prearrangement to hide the evidence of suicide in order that Evans' wife might collect his insurance.
¶7The evidence was all circumstantial, but on the issue thus drawn we find it sufficient to support the verdict and judgment. Two juries have convicted the defendant of manslaughter and both have been approved by the trial court. We, therefore, decline to disturb their finding on this point.
¶8The testimony excluded from the jury had reference to alleged threats of suicide by Evans ten years or longer prior to his death. They were not connected with any recent threats of such conduct on his part and were entirely too remote to be pertinent in this case. No error was committed in excluding them.
¶9The error charged in denying the defendant the right to the closing argument is predicated on Section 8386, Compiled General Laws of 1927, which gives the defendant the right to the closing argument when he offers no evidence but his own. *707
¶10At the trial of this case other evidence was offered than defendant's and was later stricken. Counsel are in disagreement as to whether all such evidence was stricken, but the record tends to support the State's contention. Even if the fact that it was offered did not remove the bar of the statute we find no reason to reverse the court below on this point.
¶11Other assignments have been examined and under different circumstances they would be material, but on the showing disclosed by the record in this case no reversible error is shown to have been committed, so the judgment below is reaffirmed on rehearing.
¶12ELLIS, C.J., and WHITFIELD and BROWN, J.J., concur.
¶13BUFORD and DAVIS, J.J., dissent.