Gross v. State, 79-1134
| Citation | 397 So.2d 313 |
| Decision Date | 14 January 1981 |
| Docket Number | No. 79-1134,79-1134 |
| Parties | Barbara Ann GROSS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
Barbara Ann Gross, defendant in the trial court, was charged with second degree murder and convicted of manslaughter. On appeal, she challenges the trial court's failure to include instructions on justifiable and excusable homicide when the court reinstructed the jury on manslaughter. We reverse.
As part of the final instructions, the court instructed the jury on justifiable homicide, excusable homicide, second degree murder, manslaughter, and the lesser included offense of aggravated assault. During its deliberations, however, the jury requested a reinstruction on manslaughter. Defense counsel then requested that the court also reinstruct on justifiable homicide. Over defense objection the court reinstructed only on manslaughter, omitting justifiable and excusable homicide. In doing so, however, the court also reminded the jury of its previous instructions on justifiable and excusable homicide.
We begin our discussion by noting that defense counsel sought reinstruction only as to justifiable homicide and, similarly, his objection related solely thereto. Absent a request for reinstruction on excusable homicide or an objection to the court's failure to give such instruction, the issue has not been preserved for appellate review. Castor v. State, 365 So.2d 701 (Fla.1978); Kiley v. State, 356 So.2d 328 (Fla. 4th DCA 1978); Jackson v. State, 307 So.2d 232 (Fla. 4th DCA 1975). We, therefore, limit our discussion of the merits to the failure to reinstruct on justifiable homicide.
In Hedges v. State, 172 So.2d 824 (Fla.1965), the Supreme Court announced the rule that a reinstruction on manslaughter must include a reinstruction on excusable and justifiable homicide. Failure to do so, the court said, leaves the jury with "an incomplete, and, potentially misleading instruction." Id. at 826. The court further explained its ruling in this fashion:
One notes immediately that (manslaughter) is in the nature of a residual offense. If a homicide is either justifiable or excusable it cannot be manslaughter. Consequently, in any given situation, if an act results in a homicide that is either justifiable or excusable as defined by statute, a not guilty verdict necessarily ensues. The result is that in order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions. Id.
Thus, irrespective of the facts of the case, a reinstruction on excusable and justifiable homicide is required in order to provide a complete reinstruction on manslaughter. Nelson v. State, 371 So.2d 706 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980); Pouk v. State, 359 So.2d 929 (Fla. 2d DCA 1978); Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976); Whitehead v. State, 245 So.2d 94 (Fla. 2d DCA 1971).
Accordingly, we are compelled to conclude that the trial court's failure to reinstruct the jury on justifiable homicide requires that the conviction and sentence herein be vacated and that the cause be remanded for a new trial.
REVERSED and REMANDED.
I dissent and in so doing adopt the language and reasoning set forth in the Attorney General's brief as follows:
After the jury's question was received by the judge, defense counsel requested that the justifiable homicide instruction be read along with the manslaughter and aggravated assault instructions which the jury had requested. The trial judge then discussed a recent case, and how he deals with such issues (since) that case. From his discussion, he was obviously referring to the case of Henry v. State, 359 So.2d 864 (Fla.1978). Quite candidly, it appears to counsel for Appellee that the judge's understanding of that case was not correct. Henry did not abrogate the requirement in...
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Harris v. State
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