THOMAS KELSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kelsey was convicted of manslaughter and appealed, contending the trial judge erred by refusing to reinstructs the jury on excusable and justifiable homicide when the jury requested a complete definition of manslaughter. The court reversed, holding that manslaughter requires instruction on its exclusions to provide a complete definition.
The trial judge erred in denying reinstructions on justifiable and excusable homicide. Because manslaughter is a residual offense defined by reference to what it is not, a complete definition of manslaughter necessarily includes definitions of the exclusions—justifiable and excusable homicide.
[1] When a jury requests a complete definition of manslaughter, the trial court must also instruct on justifiable and excusable homicide, as these are exclusions to unlawful…
[2] A jury's request for a complete definition of a crime requires the court to provide a full and complete instruction as to that crime.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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”
Establishes the legal standard requiring that instructions on manslaughter must include instructions on justifiable and excusable homicide as exclusions
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Join FLexlaw to unlock all legal intelligenceAt trial, the jury received instructions on all degrees of unlawful homicide, excusable homicide, and justifiable homicide. After deliberating for abo…
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THOMPSON, Judge.
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 rein-struction 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 opinion cannot be read as a grant of approval for the giving of a less than full and complete instruction as to any particular crime. See, e.g., Hunter v. State, 378 So. 2d 845 (Fla. 1st DCA 1979), and Hysler v. State, 85 Fla. 153, 95 So. 573 (Fla.1923). Manslaughter, unlike first and second degree murder, is a residual offense which is actually defined by reference to what it is not. In this case, the jury’s request specified “the complete definition of manslaughter.” This request is controlled by Hedges and requires not only the definition of manslaughter but of the other degrees of homicide, including justifiable and excusable homicide.
The appellant contends that the trial judge also erred in failing to give a requested instruction on circumstantial evidence. Under the facts of this case, the trial judge’s refusal to give such an instruction was not an abuse of his discretion. Neither did the trial judge err in failing to grant appellant’s motion for mistrial because of the prosecutor’s improper closing arguments. The remarks objected to by appellant were clearly improper and though they were perhaps not sufficient to warrant reversal in this case, we caution counsel that an otherwise valid conviction may be reversed because of overzealous prosecutorial misconduct.
REVERSED.
MILLS and WENTWORTH, JJ., concur.
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Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987)…(Fla. 2d DCA 1986); Smiddy v. State, 468 So. 2d 466 (Fla. 4th DCA 1985); Brown v. State, 467 So. 2d 323 (Fla. 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 are called on to determine whether the trial court’s summary definitions on excusable and justifiable homicid…
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Stockton v. State, 544 So. 2d 1006 (Fla. 1989)…483 So. 2d 117 (Fla. 2d DCA 1986); Smiddy v. State, 468 So. 2d 466 (Fla. 4th DCA 1985); Brown v. State, 467 So. 2d 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 (Fla.1980). The principle above was first set forth in our decision in Hedges v. State, 172 So. 2d 824 (Fla.1965), and has been followed by a line…
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Sammie Lee Harris v. State, 580 So. 2d 243 (Fla. 1st DCA 1991)…supra (court refused instruction); Delaford v. State, supra (failure to instruct after request); Pridgeon v. 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. denied, 399 So. 2d 1146 (Fla.1981) (failure to give a rein-struction after request); Lawson v. State, 383 So. 2d 1114 (Fla. 3d D…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Henry v. State, 359 So. 2d 864 (Fla. 1978)
- City of Miami v. Firth, 85 Fla. 263 (Fla. 1923)
- Hysler v. State, 85 Fla. 153 (Fla. 1923)
- Hunter v. State, 378 So. 2d 845 (Fla. 1st DCA 1979)