Opinion
February 6, 1953.
Appeal from the Criminal Court of Record for Broward County, George W. Tedder, J.
Bart E. Sullivan, Pompano Beach, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for appellee.
The appellant was tried jointly with one Primus Johnson for the murder of one James Blaine and was convicted of murder in the second degree. Johnson was convicted of murder in the first degree, with a recommendation of mercy, and has not appealed from the judgment of conviction. The appellant's motion for a severance and separate trial was denied by the trial judge, as was his motion for new trial which included the denial of such motion as one of the grounds therefor. The appellant here contends that it was error to force him to go to trial jointly with the defendant Johnson and that the evidence was insufficient to support his conviction of murder in the second degree.
The evidence adduced against the appellant was, indeed, meager and inconclusive, and the jury may well have been influenced in its verdict against him by the fact that he was tried jointly with Johnson. While the denial of the motion for severance, standing alone, might not be reversible error, when considered in connection with the meager evidence against this defendant, we think that the ends of justice will be best served by awarding a new trial to the appellant, and that the trial judge erred in refusing to do so.
Accordingly, the judgment appealed from is reversed and the cause remanded for a new trial.
HOBSON, C.J., and MATHEWS and DREW, JJ., concur.
TERRELL, THOMAS and SEBRING, JJ., dissent.