¶1On March 15, 1938, Charlie Henderson was indicted by a grand jury of Orange County, Florida, for the crime of murder in the first degree. The indictment consists of thirteen different counts in varying form and manner charging Charlie Henderson, Robert Jennings, Gus McLeod, Jack Harvey and John Bennett with murder. The defendant Charlie Henderson was charged as principal in the first degree in every count except the fourth, which count charged John Bennett with the actual slaying. The indictment charges Charlie Henderson and the other four defendants with the unlawful killing of R.H. Smith in Orange County, Florida, on the 19th day of January, 1938.
¶2On the 15th day of March, 1938, the defendants named in the indictment were arraigned and Charlie Henderson and John Bennett entered pleas of not guilty, while Robert Jennings, Jack Harvey and Gus McLeod filed pleas of guilty. John Bennett subsequently withdrew his plea of not guilty and entered a plea of guilty. The trial court entered an order of severance as to Charlie Henderson and John Bennett, and on the 15th day of March, 1938, Charlie Henderson was placed upon trial on the said indictment, and, after hearing all the testimony, argument of counsel for the State and defendant, and the charge of the court upon the law of the case, the jury on March 17, 1938, returned a verdict of guilty against Charlie Henderson of murder in the first degree. The trial court entered a judgment of guilty on the said verdict to the effect that he should be electrocuted until his death.
¶3Counsel for Charlie Henderson on the 19th day of March, 1938, filed in the Circuit Court of Orange County, Florida, a motion for a new trial to the effect that: (a) the verdict was contrary to the evidence; (b) against the weight of the evidence; (c) contrary to law; and (e) the court erred in failing to charge the jury on the law of manslaughter, *551 murder in the third degree, and murder in the second degree. While other grounds appear in the motion, it is unnecessary to consider the same. Likewise on the 24th day of March, 1938, an amended motion for a new trial, supported by affidavits, was filed. The amended motion and the affidavits in support thereof, broadly speaking, contradicted much of the testimony that was offered by the State during the progress of the trial of the cause. It is not claimed by the amended motion or the supporting affidavits that new evidence had been discovered or obtained. The amended motion for a new trial was filed on the 24th day of March, 1938, while the verdict of the jury was rendered on the 17th day of March, 1938. The time allowed by statute for filing a motion for a new trial is four days from the time of the rendition of the verdict.
¶4The evidence in this case shows that the object of the murder was robbery. Charlie Henderson and the four defendants obtained an automobile and went to the place where it was the habit of the deceased to go or be at a given hour of the evening. Charlie Henderson was armed with a double barrel shot gun and John Bennett had a single barrel shot gun. When the deceased arrived at the expected scene, the defendants ordered him to halt and immediately thereafter the shooting began, and the defendant Charlie Henderson was seen to stand over the deceased with an iron pipe and strike him a number of blows. When the deceased was admitted to the hospital a short time thereafter it was found that his skull was crushed and that he was suffering from a shot gun wound in the lower part of the stomach, and died some four or five days thereafter, the cause of death being the crushing of the skull of R.H. Smith. The defendants named in the indictment were arrested and four of them were used as State witnesses against Charlie Henderson, along with other testimony. *552
¶5While nine assignments of error are presented in the record for a reversal of the judgment appealed from, an examination of the brief for plaintiff in error shows an abandonment of some, and while the brief asks for a reversal of the judgment, it fails to give citations of authorities which would guide or support such a reversal, if ordered by this Court. Charlie Henderson will be referred to hereinafter as defendant as he appeared in the lower court.
¶6It is contended that reversible error was committed by the trial court in failing or omitting to charge or instruct the jury upon (a) manslaughter; (b) murder in the third degree; (c) murder in the second degree. We have carefully examined the evidence and think or believe there is ample evidence to sustain the verdict, and while the charge of the court was limited to murder in the first degree, we think that the evidence fully justifies the charge and that no error was committed in failing or neglecting to charge the lesser degrees of murder.
¶7We fail to find any merit in the assignment to the effect that the trial court erred in permitting or allowing the jury to have a form of verdict for murder in the first degree.
¶8It is next contended that the testimony of defendant's accomplices, viz.: Robert Jennings, Gus McLeod, Jack Harvey and John Bennett, was incompetent and that the testimony of either of said accomplices was not admissible in evidence to establish the guilt of the defendant, because they traded their pleas of guilty to the State with the understanding that they would not be electrocuted, but would give testimony for the State against the defendant when placed upon trial, and that the trial court sanctioned, ratified and approved the said agreement so made between the State of Florida and the other four defendants filing pleas of guilty. This contention, in a manner, is supported by the record *553 only by bare inference, if that. This Court had before it a similar question in the case of Ingram v. Prescot, 111 Fla. 320,149 So. 369, when it was said:
¶9"From the earliest times, it has been found necessary for the detection and punishment of crime, for the state to resort to the criminals themselves for testimony with which to convict their confederates in crime. While such a course offers a premium to treachery, and sometimes permits the more guilty to escape, it tends to prevent and break up combinations, by making criminals suspicious of each other, and it often leads to the punishment of guilty persons who would otherwise escape. Therefore, on the ground of public policy, it has been uniformly held that a State may contract with a criminal for his exemption from prosecution if he shall honestly and fairly make a full disclosure of the crime, whether the party testified against is convicted, or not. L.R.A. 1918-A page 376. Note to the report of case of Faucett v. State, 10 Okla. Cr. 111, 134 P. 839, L.R.A. 1918-A page 372; Cameron v. State, 32 Tex.Crim. Rep., 40 A.S.R. 763, and notes. Section 8311 C.G.L. 6017 R.G.S. sets up such a statutory agreement barring the State from prosecution in certain cases where the accused, without any agreement on his part, is compelled to give evidence in certain classes of cases.
¶10"But it is generally held that such an agreement is not pleadable in bar of an adjudication of guilt, although it may affect the right of the court to enforce or to impose a sentence for the infliction of punishment. Cameron v. State, supra, (Texas); Newton v. State, 15 Fla. 610.
¶11"Although it is universally conceded that the district attorney, or other public prosecutor may, with the consent of the court, enter into an agreement with an accomplice that if he will testify fully and fairly, in a prosecution against his accomplices in guilt, he shall not be prosecuted for the *554 same offense, and that if the accomplice performs on his part, he is entitled to such protection as the law affords, yet the weight of authority upholds the proposition that if such an agreement is made with the prosecuting attorney alone, without the consent or advice of the court, it is of no effect as a protection to the accomplice, if he is afterwards placed on trial in violation of that agreement. State v. Graham, 41 N.J.L. 15; 32 Am. Rep. 174; People v. Peter, 48 Cal. 251; People v. Bruzzo, 24 Cal. 41; United States v. Ford, 99 U.S. 594, 25 L. Ed. 399; Lindsay v. People, 63 N.Y. 143; Commonwealth v. Woodside, 105 Mass. 594; Wight v. Rindskopf, 43 Wis. 344."
¶12We have given careful consideration to the entire record, heard arguments of counsel for the respective parties at the bar of this Court, read the briefs and the authorities cited therein have also been duly considered, but when the case is considered as an entirety, there can be no question whatsoever as to the guilt of the defendant. The testimony offered by the State fully supports the verdict of murder in the first degree. The trial court gave appropriate instructions to the jury as to the testimony of an accomplice, or accomplices. We think the law has been fully covered by the charge of the court on this particular question. The defendant's defense was an alibi supported largely by his relatives and close friends. It was within the province of the jury to weigh all the testimony. It has not been made to appear that the jury was controlled by passion or prejudice because the testimony fully supports the jury's findings. The defendant, after the robbery, had money and divided it among his accomplices. It was a brutal murder. There is no error shown by the record and therefore the judgment appealed from is hereby affirmed. It is so ordered. *555
¶13TERRELL, C.J., and WHITFIELD, and BUFORD, J.J., concur.
¶14BROWN, J., concurs specially.
¶15I cannot concur in the language used by Mr. Justice BROWN in his specially concurring opinion, as follows:
¶16"I do not believe that any court should be a party to any such agreement, nor do I believe that the case of Ingraham *563 v. Prescott, 111 Fla. 320, 149 So. 369, should be construed as sanctioning any such practice."
¶17It would be a dangerous precedent for this Court to adopt such a holding and would be contrary to the well established law.
¶18To have the consent and approval of the trial court of the prosecuting attorney's contract with the accused for immunity is not only proper, but it is essential to have such consent and approval to give validity and binding force to the contract and to make it operate to protect the contracting accused. In Ingraham v. Prescott, 111 Fla. 320, 149 So. 369, we held.
¶19"Although it is universally conceded that the district attorney, or other public prosecutor may, with the consent of the court, enter into an agreement with an accomplice that if he will testify fully and fairly, in a prosecution against his accomplice in guilt, he shall not be prosecuted for the same offense, and that if the accomplice performs on his part, he is entitled to such protection as the law affords, yet the weight of authority upholds the proposition that if such an agreement is made with the prosecuting attorney alone, without the consent or advice of the court, it is of no effect as a protection to the accomplice, if he is afterwards placed on trial in violation of that agreement. State v. Graham, 41 N.J.L. 15; 32 Am. Rep. 174; People v. Peter, 48 Cal. 251; People v. Bruzzo, 24 Cal. 41; United States v. Ford, 99 U.S. 594, 25 L. Ed. 399; Lindsay v. People,63 N.Y. 143; Commonwealth v. Woodside, 150 Mass. 594; Wight v. Rindskopf, 43 Wis. 344.
¶20"And the practice is for the court to nolle prosequi and dismiss the prosecution by incorporating in the record of its judgment the reasons therefor, which remain a perpetual record of the defendant's self-confessed guilt, although the *564 punishment that might have been inflicted is withheld. See Camron v. State, 40 A.S.R. 763, supra."
¶21See also Lowe v. State, 111 Md. 1, 73 A. 637; Commonwealth v. St. John, 173 Mass. 566, 54 N.E. 452, 73 Am. St. Rep. 321.
¶22The legal principle is recognized in the old case of People v. Whipple, 9 Cowen 707, in which it is said:
¶23`So long as, by the policy of the law, accomplices are deemed competent witnesses against their fellows, so long must a discretion in regard to admitting them be vested somewhere or other in the government. It could not consistently with the nature of the power, or the course and character of judicial proceedings be committed to the chief executive magistrate; nor could it with propriety be entrusted to the public prosecutor, or any other inferior ministerial officer of justice, because, strictly speaking, it is the exercise of a high judicial discretion, and the reasons for vesting it in the court, rather than in the committing magistrate or even the public prosecutor, is that the admission of the party as a witness amounts to a promise by the court of a recommendation to mercy, upon condition of his making a full and fair disclosure of all the circumstances of the crime."
¶24See also Ray v. State, 1 Green 316, 48 Am. Dec. 379.
¶25So it appears that for more than one hundred years in this country it has been held to be proper for the trial court to be advised of agreements between the prosecuting attorney and accomplice whereby the accomplice proposes to give full and complete testimony concerning the offense for which he and others stand charged, in consideration of which the State agrees that it will not prosecute such accomplice further on that charge, and being so advised either to approve or disapprove of such contract and agreement between the State and the defendant. *565
¶26The weight of authority appears to be that if the court approves the agreement, then upon the defendant carrying out his part of the agreement, it becomes the duty of the court to make an order on the record showing the conditions under which the accomplice testified and ordering his discharge from further prosecution.