Polk v. State, 5131
Decision Date | 05 October 1965 |
Docket Number | No. 5131,5131 |
Citation | 179 So.2d 236 |
Parties | Zollie Leroy POLK, Jr., Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Jack T. Edmund and Thomas W. Perkins, Lake Alfred, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.
McNULTY, JOSEPH P., Associate Judge.
Appellant was found guilty by a jury verdict of murder in the first degree, with a recommendation of mercy. He raises nine points on appeal, only one of which has merit.
The indictment herein charged premeditated murder, not felony murder. Appellant alleges that the Court erred in refusing defendant's requested Instruction No. II, particularly in view of the fact that the Court did not otherwise cover the subject matter thereof. Defendant's requested Instruction No. II is as follows:
This requested instruction appears to be, substantially, a proper definition of 'premeditated design,' as it applies to an essential element of murder in the first degree when not committed in the perpetration, or attempted perpetration, of any of the felonies enumerated in our statute 782.04 F.S.A. McCutchen v. State, Fla.1957, 96 So.2d 152; Larry v. State, Fla.1958, 104 So.2d 352; Daniels v. State, Fla.1959, 108 So.2d 755; Mackiewicz v. State, Fla.1959, 114 So.2d 684. The Trial Court did not, in any instruction, define 'premeditated design,' although he mentioned it as an essential element of the offense charged in the indictment.
The precise question to be decided here is whether, notwithstanding a specific request, the Court erred in failing to define 'premeditated design.'
It is the duty of the trial Court to give full instructions governing the entire law of the case as respects all the facts proved, or claimed by counsel to be proved, provided such claim is supported by competent evidence. Witt v. State, 1920, 80 Fla. 38, 85 So. 249; Simmons v. State, 1948, 160 Fla. 626, 36 So.2d 207; Austin v. State, Fla.1949...
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Anderson v. State, 41755
...jury would have neither an understanding of what they were looking for to determine it, nor what to exclude to reject it.' Polk v. State, Fla.App., 1965, 179 So.2d 236. Failure to define 'premeditation' in a first degree murder charge is reversible error, even where no objection was made by......
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...else."); Anderson v. State, 276 So.2d 17 (Fla.1973) (failure to define premeditation in first degree murder case); Polk v. State, 179 So.2d 236 (Fla. 2d DCA 1965) (same); Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945) (omission from self-defense instruction of right to resist if defenda......
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...Judge. Premeditation is the "one essential element which distinguishes first-degree murder from second-degree murder." Polk v. State, 179 So.2d 236, 237 (Fla. 2d DCA 1965); Anderson v. State, 276 So.2d 17 "Premeditation is a fully-formed conscious purpose to kill, which exists in the mind o......
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Weaver v. State
...The same analogy was made in Timmons v. State, Id.6 82 Va. 554.7 Douglas v. State (1942) 152 Fla. 63, 10 So.2d 731.8 Polk v. State (Fla.App.1965), 179 So.2d 236; Mackiewicz v. State (Fla.1959). 114 So.2d 684, and McCutchen v. State (Fla.1957), 96 So.2d 152.9 See e.g., Mackiewicz v. State, I......