Hedges v. State, 33567

Decision Date17 March 1965
Docket NumberNo. 33567,33567
Citation172 So.2d 824
PartiesVesta HEDGES, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Mark R. Hawes, St. Petersburg, and Richard B. Keating, Orlando, for petitioner.

Earl Faircloth, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for respondent.

THORNAL, Justice.

By a petition for a writ of certiorari we have for review a decision of a District Court of Appeal which allegedly conflicts with prior decisions of this Court and another District Court of Appeal.

We must decide whether a charge defing degrees of homicide, including manslaughter, should likewise include a definition of excusable and justifiable homicide.

The facts are revealed by the opinion of the District Court of Appeal. Hedges v. State, 165 So.2d 213. The petitioner Hedges was indicted for the first degree murder of her paramour. She was convicted of manslaughter. The trial judge initially instructed the jury on all degrees of unlawful homicide. He also instructed on justifiable and excusable homicide. After deliberating some six hours and recessing for the night a juror advised the court:

'We would like for you to go over the different degrees that were stated the other day. There is some confusion as to the different charges there.'

In response to the juror's request, the judge repeated his charge on the degrees of unlawful homicide. However, he denied a request of petitioner's attorney to include his charge on justifiable and excusable homicide. The judge had the view that since the jury requested only the charges on degrees of homicide, he had no obligation to repeat his charge on justifiable and excusable homicide. Petitioner's attorney pointed out that the statute which defines manslaughter specifically excludes justifiable and excusable homicide. He contended that it would be impossible to define manslaughter accurately without reference to the other two types of homicide. The District Court affirmed the ruling of the trial judge. Its decision is now here for review.

Petitioner claims that the decision below conflicts with the prior decision of this Court in Tipton v. State, 97 So.2d 277, and, the decision of the Court of Appeal, First District, in Bagley v. State, 119 So.2d 400.

In Tipton we held that the manslaughter statute, Section 782.07, Florida Statutes, F.S.A., necessarily requires a definition of excusable homicide as an essential of a complete charge. In Bagley the First District held that an instruction should be complete. It should cover every essential element of the offense charged. There the information charged second degree murder but in his instructions the trial judge omitted a part of the statutory definition of justifiable homicide. This resulted in a reversal.

In the instant case the trial judge deemed it unnecessary to define justifiable and excusable homicide in order to inform the jury correctly on the several degrees of unlawful homicide, including manslaughter.

An examination of the cases cited, as well as others which we shall mention, leads us to a jurisdictional conflict of decisions and hence a consideration of the merits.

Section 782.07, Florida Statutes, F.S.A., defines Manslaughter as follows:

'The killing of a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder * * * shall be deemed manslaughter * * *.'

One notes immediately that it 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. A definition of the higher degrees of homicide--as one of the manslaughter exclusions--would be necessary only if a higher degree is charged, as was the case here.

We have already mentioned Tipton v. State, supra, and Bagley v. State, supra. There are other decisions which underscore the presence of jurisdictional conflict and support the conclusion which we here reach.

It will be recalled that the instant problem arose when the trial judge repeated--at jury request--his instructions on degrees of homicide. It is proper for a judge to limit the repetition to the charges requested. Hysler v. State, 85 Fla. 153, 95 So. 573. However, the repeated charges should be complete on the subject involved. The giving of a partial instruction fails to inform the jury fully and often leads to undue emphasis on the part given as against the part omitted. McCray v. State, 89 Fla. 65, 102 So. 831. The McCray decision is particularly persuasive. There the judge repeated certain charges on the degrees of homicide and failed to add that, if the evidence warranted, the defendant could be convicted of any of the degrees 'or be acquitted'. The failure to add the posibility of acquittal was held error.

In Graives v. State, 127 Fla. 182, 172 So. 716, a manslaughter case, we...

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118 cases
  • Weiand v. State
    • United States
    • Florida Supreme Court
    • March 11, 1999
    ...every reasonable means within his or her power to avoid the danger, including retreat. See Bobbitt, 415 So.2d at 725; Hedges v. State, 172 So.2d 824, 827 (Fla.1965). The duty to retreat emanates from common law, rather than from our statutes. See Hedges, 172 So.2d at There is an exception t......
  • Gainer v. State
    • United States
    • Court of Special Appeals of Maryland
    • October 11, 1978
    ...it is the main challenge to the judgment below. In our view, "the rule of non-necessity of retreat in one's own home," Hedges v. State, 172 So.2d 824, 827 (Fla.1965), should also have been covered although not in the specific language proposed and the failure to do so was reversible Prelimi......
  • State v. Spencer
    • United States
    • Florida Supreme Court
    • April 27, 2017
    ...of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions.Hedges v. State , 172 So.2d 824, 826 (Fla. 1965), receded from on other grounds , Weiand v. State , 732 So.2d 1044 (Fla. 1999) ; see also Philip p e v. State , 795 So.2d 173, 174 ......
  • Wike v. State
    • United States
    • Florida Supreme Court
    • November 23, 1994
    ...to a harmless error analysis. See Miller v. State, 573 So.2d 337 (Fla.1991); Rojas v. State, 552 So.2d 914 (Fla.1989); Hedges v. State, 172 So.2d 824 (Fla.1965). These are but two examples of legal principles we have found too important to the process to permit a harmless error The facts of......
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