GEORGE MCKINNEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the evidence was sufficient to sustain the conviction for third-degree murder, as the elements of self-defense were not met.
[1] Evidence is insufficient to sustain a conviction when the facts presented do not support the elements of the crime charged.
[2] A homicide is not justifiable as self-defense when the defendant initiates or continues the use of deadly force after the immediate threat has passed.
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Join FLexlaw to unlock all legal intelligenceThe defendant shot and killed the victim after an argument over rent. The victim had threatened the defendant and was leaving the premises when the de…
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The appellant was charged by information with murder in the second degree. When tried thereon he was convicted of murder in the third degree. On this appeal therefrom by the defendant it is contended the evidence is insufficient to sustain the conviction. Upon consideration thereof in the light of the record and briefs we hold that contention is without merit.
It was shown by the state, without contradiction, that the defendant shot and killed the victim. However, the appellant argues that the evidence established the homicide was justifiable, as having been committed in self-defense. See § 782.02 (2) (b) Fla.Stat., F.S.A.
On the evidence submitted the trier of the facts was clearly entitled to find against the defendant on the issues relating to self-defense. The victim, with a woman companion, entered defendant’s premises seeking to rent a room. An argument ensued over the amount to be paid therefor. In the course of the argument the victim pulled a gun on the defendant, and threatened to shoot him. While the discussion was in progress the woman departed. When the argument ended the victim also departed, after announcing a further threat that he would return and rob and kill the defendant. After the victim went out the defendant remained inside, and locked the door. The defendant then went up to the second floor, obtained a shotgun, and went onto an upstairs porch from where he shot twice at the victim as the latter was leaving the yard and preparing to depart by automobile. The defendant stated that before he fired, the victim turned on him with a gun. A witness testified that the victim did not turn until after the defendant had fired one shot, and that the victim was felled by a second shot fired by the defendant from the upstairs porch. On those facts, elements necessary to make out justifiable homicide by self-defense were lacking. See Ward v. State, 75 Fla. 756, 79 So. 699, 706-707; Linsley v. State, 88 Fla. 135, 101 So. 273, 274-275; State v. Coles, Fla.1956, 91 So.2d 200, 203.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Wade, 305 So. 2d 851 (Fla. 3d DCA 1974)…fatal shot or strikes the fatal blow after danger of death or great bodily harm to him from the deceased’s attack has passed.” That principle was followed and applied in State v. Coles, Fla.1956, 91 So. 2d 200, and McKinney v. State, Fla.App.1972, 260 So. 2d 239. Assuming therefore, although the evidence did not so establish, that the accused was not the aggressor in the initial shooting in which shots may have been exchanged between him and the persons who were gathered outside the nightclub, he had the m…
Authorities Cited
- Linsley v. State, 88 Fla. 135 (Fla. 1924)
- State v. Ola Coles, 91 So. 2d 200 (Fla. 1956)
- Ward v. State, 75 Fla. 756 (Fla. 1918)