Kelsey v. State, AE-173
| Decision Date | 15 March 1982 |
| Docket Number | No. AE-173,AE-173 |
| Citation | 410 So.2d 988 |
| Parties | Thomas KELSEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Tallahassee, for appellee.
Kelsey appeals a final judgment of guilt of the crime of manslaughter, contending it was error for the trial judge to refuse to reinstruct the jury on excusable homicide and justifiable homicide when the jury twice requested reinstruction on the crime of manslaughter. We agree and reverse.
At the conclusion of the trial, the court instructed the jury on all degrees of unlawful homicide, and on excusable and justifiable homicide. After deliberating for an hour and a half, the jury came out and requested that the definitions of second degree murder and manslaughter be repeated. Appellant's counsel moved for reinstruction on justifiable and excusable homicide as well, but the court denied this motion. After deliberating for approximately two-and-one-half more hours, the jury again requested an additional instruction as to "the complete definition of manslaughter."
Again, appellant's counsel asked that the jury be reinstructed on justifiable and excusable homicide. The state did not object to appellant's request for the reinstruction but nonetheless the court denied appellant's request. In Hedges v. State, 172 So.2d 824 (Fla.1965), our Supreme Court held 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." Justifiable homicide and excusable homicide are exclusions to unlawful homicide. When the jury asked for "a complete definition of manslaughter", it was error for the trial judge to deny appellant's request that they also be instructed on the definitions of excusable and justifiable homicide.
The state contends that the conviction should be affirmed on the authority of Henry v. State, 359 So.2d 864 (Fla.1978), in which the jury asked for reinstruction on the difference between first and second degree murder. The trial court gave the reinstruction without instructing as to any of the other degrees of homicide. On appeal, the Florida Supreme Court approved the trial judge's action in reinstructing only as to the crimes the jury specifically asked about. However, the Henry op...
To continue reading
Request your trial
-
Harris v. State
... ... State, 425 So.2d 8 (Fla. 1st DCA), rev. denied, 421 So.2d 68 (Fla.1982) (failure to give a reinstruction after request); Kelsey v. State, 410 So.2d 988 (Fla. 1st DCA 1982) (failure to give a reinstruction after request); Gross v. State, 397 So.2d 313 (Fla. 4th DCA), rev ... ...
-
Stockton v. State
...323 (Fla. 4th DCA), review denied, 467 So.2d 1000 (Fla.1985); Delaford v. State, 449 So.2d 983 (Fla. 2d DCA 1984); Kelsey v. State, 410 So.2d 988 (Fla. 1st DCA 1982); Lawson v. State, 383 So.2d 1114 (Fla. 3rd DCA), review denied, 392 So.2d 1379 The principle above was first set forth in our......
-
Garcia v. State, 87-2543
...concomitant of manslaughter." Turner v. State, 414 So.2d 1161, 1161-62 (Fla. 3d DCA 1982) (emphasis supplied). Kelsey v. State, 410 So.2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So.2d 313 (Fla. 4th DCA 1981). The question before us, however, is whether the same rule obtains where, as h......
-
Ortagus v. State, BL-204
...4th DCA 1985); Delaford v. State, 449 So.2d 983 (Fla. 2d DCA 1984); Pridgeon v. State, 425 So.2d 8 (Fla. 1st DCA 1982); Kelsey v. State, 410 So.2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So.2d 313 (Fla. 4th DCA 1981); Lawson v. State, 383 So.2d 1114 (Fla. 3d DCA 1980). Therefore, we ar......