¶1In October, 1928, Ben Andrews shot and killed Earl B. Dyal in Duval County, Florida. On the 25th day of December, 1928, an information was lodged against Andrews in the Criminal Court of Record charging him with murder in the second degree. Upon a plea of not guilty the accused was tried and convicted of manslaughter. He seeks the reversal of the judgment on writ of error.
¶2One of the propositions of counsel for plaintiff in error, as we gather it from the brief, is that in view of the facts the accused was guilty of murder in the first degree or should have been acquitted on the theory of justifiable homicide; that as the grand jury indicted the accused for murder in the second degree he was exonerated of the charge of murder in the first degree and as the jury found his guilty of manslaughter he was acquitted of murder in the second degree; therefore the judgment should be reversed because the conviction cannot be sustained under the law and facts.
¶3The proposition may be reduced to this: Assuming that the facts would support a charge of murder in the first degree, the accused should be acquitted because he was indicted for murder in the second degree and convicted of the offence of manslaughter.
¶4No authority is cited in support of the proposition. The only case cited in a brief of twenty pages is that of Pinder v. State, 27 Fla. 370, 8 So. R. 837, to the proposition that in a trial of an indictment for murder in the first degree the *1353 accused should be given the "benefit of the theory that the killing must have been unlawful or without a legally recognized excuse or justification in order to constitute the crime of murder or manslaughter."
¶5The conviction in the Pinder case was reversed because of two errors, one was that the trial court in instructing the jury upon the subject of self defence misstated the law of excusable homicide by announcing that " 'it is necessary that the defendant should have perpetrated the act under thewell grounded belief, justified by the surroundings, that it was necessary to take the life of the person slain in order to save his own life, or to prevent great bodily harm to himself at the time he fired the fatal shot.' " Pinder's defense was that he was shooting at some one else in self defense and accidentally killed Tillman. It was pointed out that the second erroneous feature of the charge consisted in depriving Pinder of the defense founded upon the theory that the killing of Tillman was unintentional and accidentally brought about by the excusable or justifiable defense of himself against impending danger from a third party.
¶6There is nothing in the Pinder case analogous to the one at bar. We find nothing in the record to support the statement that the grand jury indicted Andrews for murder in the second degree. He was prosecuted upon information filed by the county solicitor. This observation is made not that we regard the fact as of any importance or that an indictment of a person for one offense is ipso facto an acquittal of such person of a more serious or higher degree of the offense charged.
¶7The facts in the case are not analogous to those existing in the Pinder case. In the case at bar the evidence fully justified the conviction of the accused upon the charge made *1354 against him but he was found guilty of a lesser degree of homicide than that with which he was charged.
¶8While manslaughter is not a degree of murder, it is a degree or grade of unlawful homicide. See Boyett v. State,69 Fla. 648, 68 So. R. 931.
¶9Upon a trial for murder in the first degree every grade of unlawful homicide is involved. See Ammons v. State, 88 Fla. 444, 102 So. R. 642; Potsdamer v. State, 17 Fla. 895; Rivers v. State, 75 Fla. 401, 78 So. R. 343; McCoy v. State, 40 Fla. 494, 24 So. R. 485; Green v. State, 43 Fla. 556, 30 So. R. 656.
¶10When the evidence justifies a verdict of murder in the first or second degree an unjustified verdict of murder in the third degree is not contrary to the evidence in the sense that a new trial must be granted. See Clemmons v. State,43 Fla. 200, 30 So. R. 699.
¶11It would be of no benefit to any person interested nor to the people at large to discuss the evidence in this case. It merely presents the case of a person more or less intoxicated going about with a pistol which from motives conjured up by disordered mental faculties he desires to exploit to the terror of others and the gratification of his own morbid sense of local importance. The result was the death of a citizen unlawfully killed by the "pistol toter."
¶12We think the evidence amply sufficient to support the verdict and finding no error in the proceedings the judgment is affirmed.
¶13WHITFIELD, AND BUFORD, J. J., concur.