Stinson v. State, M--406

• Decision Date: 09 March 1971
• Docket Number: No. M--406,M--406
• Citation: 245 So.2d 688
• Parties: Robert STINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 688

245 So.2d 688

Robert STINSON, Appellant, v. STATE of Florida, Appellee.

No. M--406.

District Court of Appeal of Florida, First District.

March 9, 1971.

Rehearing Denied April 8, 1971.

H. Clay Mitchell, Jr., Pensacola, for appellant.

Robert L. Shevin, Atty. Gen., and John A. Zebedee, Asst. Atty. Gen., for appellee.

SPECTOR, Judge.

Appellant was adjudged guilty of the offense of third degree murder after a jury trial on charges of second degree murder. For reversal appellant challenges the correctness of the court's instruction to the jury on justifiable and excusable homicide.

Following are the facts underlying the charges as stated in appellant's brief and admitted by appellee's brief.

Appellant, his wife and another woman were at home at the time of the homicide which occurred around midnight. Appellant called to the deceased who was across the street and inquired about the payment of a debt owed by him to appellant. The appellant was 87 years old and weighed 91 pounds. The deceased was 27 years old, 6 feet, 1 inch tall and weighed nearly 200 pounds.

Ruby Watson, a state witness, was at appellant's house visiting his wife. She testified that at the time the shot was fired, the appellant was on his own property just a few feet from the edge of his house. Mrs. Watson also testified that as the deceased came across the street toward appellant, the deceased said, 'I am going to give you one of the worst ass whippings you have ever had.' At this time it was dark and the deceased had his hand in his pocket. He took his hand out of his pocket and swung at the appellant. When he swung at appellant, the latter jumped back and fired one shot which entered deceased's left eye. After the shooting, the deceased was taken to the hospital by appellant and Sam Rich, a witness. The deceased's wife testified that appellant said, 'Let him die right there' when he was being put in the car for the hospital trip, but Rich, who was a state's witness, stated no such remark was made. The appellant, who took the stand, also denied making such a statement.

According to the transcript of testimony there were several witnesses who were in the vicinity of the affray who were called by the state but only one, Ruby Watson, actually witnessed the shooting. Mrs. Watson testified that the deceased and appellant were standing close enough, apparently divided only by the yard fence, so that deceased would have hit appellant if the latter had not jumped backwards. The fatal shot came right after appellant jumped.

During its instructions to the jury, the trial court defined justifiable homicide as follows:

'Justifiable and excusable homicide are defined by statute, I see no reason to read all of the definitions, justifiable homicide includes homicide committed in the lawful defense of one's person or necessarily committed in attempting by lawful means and ways to apprehend a person for a felony committed or in lawful keeping and preserving the peace, so that justifiable homicide includes self-defense.'

Appellant contends that the above instruction on justifiable and excusable homicide is fatal for the reason that the same was not given in the language of the statute as held preferable by this court in Bagley v. State, 119 So.2d 400. Appellee's response to this contention is that the rule emanating from Bagley, supra, was not violated below inasmuch as there was no evidence in this case of any danger posed to appellant's wife necessitating a defense as was the case in Bagley. It is true that here there was no relative of the defendant in the vicinity of the affray as argued by the appellee. But the state's position in this regard in no way answers appellant's complaint that each and every element of the statutory defense of justifiable homicide should be charged upon if it is supportable by any reasonable view of the evidence. The defense of one's relatives or one's self is not the only circumstance for invoking Section 782.02, Florida Statutes, F.S.A. On the contrary, the statute expressly provides that the defense is applicable in either of several cited circumstances. Appellant has italicized the portions of Section 782.02 which were omitted from the court's charge and contends that the omission here, as in Bagley, was fatal; viz:

'Homicide is justifiable when committed by any person in either of the following cases: (1) When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person shall be; or (2) when committed in the lawful defense of such person Of his or her husband, wife, parent, grandparent, mother-in-law, son-in-law, daughter-in-law, father-in-law, child, grandchild, sister, brother, uncle, aunt, niece, nephew, guardian, ward, master, mistress or servant, when there shall be a reasonable a felony or to do some great personal injury, and there shall be imminent danger and thee shall be imminent danger of such design being accomplished; or (3) when necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully Suppressing any riot, or in lawfully keeping and preserving the peace.'

We hold on authority of Bagley, supra, that the defendant is entitled to have the jury instructed on the law applicable to his theory of defense where there is evidence introduced in support thereof. In the case at bar, one theory of the defense of justifiable homicide that the appellant was deprived of was that the jury under the evidence...