Barnes v. State, 76-11
| Decision Date | 01 July 1977 |
| Docket Number | No. 76-11,76-11 |
| Parties | William C. BARNES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender and Frank B. Kessler, Chief, Appellate Div., West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was charged with Murder II and convicted of manslaughter. It is from that conviction he appeals.
Appellant and deceased were observed each holding sticks and Appellant was seen to hit deceased with a stick and kick the deceased in the head. The cause of death was a brain hemorrhage. After striking the deceased the Appellant left the scene and went home and was later contacted by police and arrested. His defense was self defense which, if successfully maintained, constitutes justifiable homicide. Section 782.02, Florida Statutes (1975).
The error complained of is in three occurrences at trial. We shall deal with them separately and point out that in the cases cited each type of error has been held to be reversible in and of itself. However, in this case it is the three taken together which cause us to reverse.
POINT I. The court gave the following instruction to the jury:
"We will move now to the lesser included offense of manslaughter.
Manslaughter is the killing of a human being by an act, procurement or culpible (sic) negligence of another in cases where such killing shall not be justifiable or excusable homicide or murder.
At this point, as far as the definition of manslaughter, we have to tell you what justifiable and excusable homicide is. This is what justifiable homicide is.
The killing of a human being by any person is justifiable homicide and lawful when committed in resisting an attempt to murder such person, or to commit any felony upon him or upon or any dwelling house in which this person shall be: two, when committed in the lawful defense of such person or his or her husband, wife, parent, grandparent, mother-in-law, father-in-law, child, grandchild, sister, brother, aunt, uncle, niece, nephew, guardian, or when there shall be reasonable grounds to apprehend a design and to commit a felony, or do some great personal injury and there shall be imminent danger of such design being accomplished; and when necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing a riot, or lawfully keeping and preserving the peace.
A homicide committed in self defense that is in the defense of the life of the accused or to protect his person from imminent danger of death or great bodily harm is a justifiable homicide and lawful.
Remember, that's your definition of justifiable homicide, which is part of the definition of manslaughter. " (Emphasis supplied.)
The jury again retired to consider its verdict and again returned with a question which question was summarized by the trial judge as follows:
"THE COURT: For the record, as counsel, you are aware, the jury has conveyed to Mr. Louis, our bailiff, and he has conveyed to me, and I have conveyed to you, that they have some questions as to whether they could write something on one of their verdict forms that was not there in regard to possibly justifiable or excusable homicide."
The foreman stated the question and the court responded as follows:
"THE FOREMAN: It is not the form itself. It's just to a particular charge, if there are different degrees to the one charge, and the verdict only has the main charge.
How do we know that you are going to know the charge we want and whether it's a lesser degree of one charge?
THE COURT: You are to sign, as foreman, one of those possible verdict forms, depending upon what your verdict your unanimous verdict is.
If it's second degree, you sign that one; third degree; manslaughter; aggravated assault; or not guilty.
I told you this before, that if no crime has been proved by the State of Florida beyond and to the exclusion of every reasonable doubt, then you sign not guilty.
I don't know if that's your question, but you, as the foreman, are to sign one of those possible verdict forms, depending on what your unanimous verdict is.
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