SCOTT, ET AL. v. STATE, 111 Fla. 274 (1933)

149 So. 480

WALTER SCOTT, et al., v. STATE.

Supreme Court of Florida.
Opinion Filed July 6, 1933. Rehearing Denied August 1, 1933.

A writ of error to the Circuit Court for Dade County, E. C. Collins, Judge.

C. S. Ellis, for Plaintiff in Error;

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Cary D. Landis, Attorney General, and Roy Campbell,
Assistant, for the State.

PER CURIAM. —

In this case all the members of the Court are agreed that the judgment should be affirmed as to the convictions of the plaintiffs in error, Walter Scott and Clifford Bishop. But as to the convictions of the defendants, Joe Rayburn and William Henderson, the Court is equally divided in its opinion as to whether the convictions of these men should be affirmed or reversed.

Mr. Chief Justice DAVIS, Mr. Justice TERRELL and Mr. Justice BROWN are of the opinion that the evidence does not warrant sustaining the verdict of guilty as to defendants Joe Rayburn and William Henderson and that therefore the judgments as to these two named plaintiffs in error should be reversed on the authority of McNeil v. State, 104 Fla. 360, 139 Sou. Rep. 791, wherein it was held that a conviction should be reversed and a new trial ordered, where the evidence does not satisfactorily establish accused’s identity as a participant in the crime of which he was convicted. Mr. Justice WHITFIELD, Mr. Justice ELLIS and Mr. Justice BUFORD are of the opinion that the judgment should be affirmed as to all the plaintiffs in error.

Therefore upon the authority of Black v. State, 106 Fla. 15, 142 Sou. Rep. 599, and cases cited, the judgments are affirmed as to all defendants below, the Court being equally divided as to the affirmance as to two of them and agreed as to the affirmance as to the others.

Affirmed.

DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.

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