WILLIE CHESTER GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by failing to instruct the jury on justifiable or excusable homicide when defining manslaughter. The court also noted that sentencing must comply with North Carolina v. Pearce.
Willie Chester Green was found guilty of assault with intent to commit murder in the first degree. This was the second trial for the appellant, and th…
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Willie .Chester Green was found guilty by a jury of assault with intent to commit murder in the first degree. This is the second time this case has been before this court and the facts are adequately set out in Green v. State, Fla.App.1969, 228 So.2d 397, cert. den. Fla. 1970, 237 So.2d 540. ,*. . , , , We see no reason to elaborate on that set 0f facts.
Appellant in this appeal assigns as error the trial court’s failure to give a charge on justifiable or excusable homicide. We believe the court cannot properly define manslaughter without explaining what justifiable or excusable homicide would be.. Hedges v. State, Fla. 1965, 172 So.2d 824; Wilson v. State, Fla.App. 1965, 171 So.2d 903; Brown v. State, Fla.1960, 124 So.2d 481. In Hedges, supra, 172 So.2d at page 826, the court said:
“In Graives v. State, 127 Fla. 182, 172 So. 716, a manslaughter case, we held that it is the duty of the judge to instruct on justifiable and excusable homicide. In Halfrich v. State, 122 Fla. 375, 165 So. 285, we held that it is always proper to instruct on justifiable and excusable homicide when defining manslaughter as a degree of unlawful homicide. The reason given was to enable the jury to understand the definition of manslaughter.”
Appellant also assigns as error the fact that the court increased the sentence in the second trial to run consecutively with a prior twenty year sentence on another charge. In view of our holding as regards the first point, it is unnecessary to make a determination as to the increase in sentence except to say that North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, must be followed in sentencing in the event appellant is again convicted.
For the foregoing reasons this cause is remanded with directions that defendant be granted a new trial.
PIERCE, C. J., and HOBSON, J., concur.
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Driggers v. State, 917 So. 2d 329 (Fla. 5th DCA 2005)…ense of homicide); Lawson v. State, 383 So. 2d 1114 (Fla. 3d DCA) ("Manslaughter is defined as homicide which is not murder, and which is neither justified nor excused.”) (footnote omitted), review denied, 392 So. 2d 1379 (Fla.1980); Green v. State, 244 So. 2d 167 (Fla. 2d DCA 1971); see also Bautista v. State, 863 So. 2d 1180, 1186 (Fla.2003) (holding that DUI manslaughter "falls within the general category of homicide offenses” and that "[hjomicides are punished based on the number of victims because the le…
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Pouk v. State, 359 So. 2d 929 (Fla. 2d DCA 1978)…manslaughter, as the court did here, it must also give an instruction on justifiable homicide and excusable homicide. Hedges v. State, 172 So. 2d 824 (Fla.1965); see, also, Whitehead v. State, 245 So. 2d 94 (Fla. 2d [*930] DCA 1971); Green v. State, 244 So. 2d 167 (Fla. 3d DCA 1971). This is so even where there is no evidence to support a finding of justifiable or excusable homicide because manslaughter cannot be adequately defined without such an instruction. Hedges v. State, supra. The state contends that…
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Ellis Hancock v. State, 276 So. 2d 223 (Fla. 1st DCA 1973)…Rudolph Porter. Appellant contends, inter alia, that the trial court erred in refusing to instruct the jury on the law pertaining to the defense of others. An analogous question was decided by the Second District Court of Appeal in Green v. State, 244 So. 2d 167 (Fla.App.1971). The court held in Green that the trial court in a prosecution for assault with intent to commit murder was required to explain justifiable or excusable homicide in defining manslaughter as a degree of unlawful homicide. The court in…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Ike Brown v. State, 124 So. 2d 481 (Fla. 1960)
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Graives v. State, 127 Fla. 182 (Fla. 1936)
- Halfrich v. State, 122 Fla. 375 (Fla. 1936)
- Green v. State, 228 So. 2d 397 (Fla. 2d DCA 1969)
- Rice v. State, 228 So. 2d 397 (Fla. 3d DCA 1969)
- Wilson v. State, 171 So. 2d 903 (Fla. 2d DCA 1965)
- Reliance Ins. Co. v. Dade Cnty., 237 So. 2d 540 (Fla. 1970)
- Robinson v. Waldrep Dairy, Inc., 237 So. 2d 540 (Fla. 1970)