Blitch v. State, 81-2443
| Decision Date | 02 March 1983 |
| Docket Number | No. 81-2443,81-2443 |
| Citation | 427 So.2d 785 |
| Parties | Charles BLITCH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Sherman M. Brod, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Charles Wayne Blitch appeals an order adjudicating him guilty of second degree murder in accordance with a jury verdict and sentencing him to fifteen years imprisonment. We reverse and remand for a new trial because of the manner in which the trial court instructed the jury on the defense of excusable homicide.
The state charged appellant with the second degree murder of one Ira Scott, Jr., with a shotgun. At trial, the evidence clearly revealed that appellant killed Scott with a single shotgun blast. However, the evidence was in conflict as to whether appellant shot Scott accidentally or intentionally. Also, the evidence was in dispute as to appellant's state of mind when he pulled the trigger.
At the charge conference after the close of all the evidence, appellant's trial counsel requested the court to read parts 1 and 2 of the 3-part standard jury instruction on the defense of excusable homicide. The 3-part standard jury instruction on excusable homicide provides:
An issue in this case is whether the killing
of [Scott] was excusable
The killing of a human being is excusable
if committed by accident and misfortune
In order to find the killing was committed
by accident and misfortune, you must find
the defendant was
Give 1, 2 1. a. doing a lawful act by lawful means
or 3 as and with usual care and
applicable b. acting without any unlawful intent
2. in the heat of passion brought on by a
sudden provocation sufficient to produce
in the mind of an ordinary person
the highest degree of anger, rage or
resentment that is so intense as to
overcome the use of ordinary judgment,
thereby rendering a normal person
incapable of reflection.
3. engaged in sudden combat. However,
if a dangerous weapon was used in the
combat or the killing was done in a
cruel or unusual manner, the killing is
not excusable.
The court expressly agreed with appellant's trial counsel that parts 1 and 2 applied to the case, but after closing arguments it failed to instruct the jury as promised. Instead, it read the introductory excusable homicide instruction, which is practically verbatim to the excusable homicide statute:
The killing of a human being is excusable and, therefore, lawful when committed by accident and misfortune, in doing any lawful act by lawful means with usual, ordinary caution and without any unlawful intent, or by accident or misfortune in the heat of passion upon any sudden and sufficient provocation or upon a sudden combat, without any dangerous weapon being used, and not done in a cruel or unusual manner.
At the conclusion of all the instructions, appellant's trial counsel advised the court that it had not read parts 1 and 2 of the standard jury excusable homicide instruction as agreed. The court, however, denied his renewed request for instructions on these two parts, surmising that its summary instruction was "sufficient."
Appellant contends on appeal that the trial court's summary instruction on excusable homicide amounted to reversible error because he thinks in part that the...
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...given the fact that, “particularly in a criminal trial, the judge's last word is apt to be the decisive word.” Blitch v. State, 427 So.2d 785, 787 (Fla. 2d DCA 1983) (quoting Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946)).18 Thus, we conclude that the tri......
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Cliff Berry, Inc. v. State
...given the fact that, "particularly in a criminal trial, the judge's last word is apt to be the decisive word." Blitch v. State, 427 So. 2d 785, 787 (Fla. 2d DCA 1983) (quoting Bollenbach v. United States, 326 U.S. 607, 612 (1946)).18 Thus, we conclude that the trial court's refusal to give ......
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Kingery v. State
...506 So.2d 1043 (Fla.1987); Parker v. State, 495 So.2d 1204 (Fla. 3d DCA 1986) review denied, 504 So.2d 768 (Fla.1987); Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983). In Young, the trial court did not give the standard jury instruction on excusable homicide. Instead, the court recited th......
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Harris v. State
...that this same abbreviated jury instruction language defining excusable homicide constituted reversible error in Blitch [Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983) ] where there was a similar contention and supporting evidence that the shooting was accidental and the state of mind of......