Gentry v. StateGentry v. State
The main issue in this case is whether voluntary intoxication1 may be a defense to attempted second degree murder.
The appellant choked his father and swore to kill him. He then snapped a pistol several times next to his father‘s head. When the gun failed to fire, the appellant struck his father in the head with the gun. The state charged appellant with attempted murder.
At the trial, appellant contended that he was intoxicated when he attacked his father. The judge instructed the jury that voluntary intoxication may be a defense to a crime which required a specific intent. He charged the jury that first degree murder was a specific intent crime. He also instructed the jury that one could be convicted of second degree murder without proof of specific intent. While the judge referred to specific intent only in the context of first and second degree murder, the clear implication of his instructions as a whole was that voluntary intoxication could be a defense to attempted first degree murder but not to attempted second degree murder. Appellant‘s objection was sufficiently precise to preserve his point for appellate review. See Spurlock v. State, 420 So.2d 875 (Fla. 1982). The jury ultimately returned a verdict of attempted second degree murder.
Appellant relies upon a long line of authority which states that attempts are specific intent crimes.2Adams v. Murphy, 394 So.2d 411
It is well settled that voluntary intoxication is not a defense to second degree murder because no degree of murder below first degree murder is a specific intent crime. Crews v. State, 143 Fla. 263, 196 So. 590 (1940); Garner v. State, 28 Fla. 113, 9 So. 835 (1891). The crime of second degree murder requires the proof of no more than a general intent to commit the imminently dangerous act which results in the unlawful killing. See Polk v. State, 179 So.2d 236 (Fla. 2d DCA 1965). Hence, there is an anomaly in the law of Florida under which an attempt to commit second degree murder appears to require a specific intent, but the consummated act of second degree murder does not require such an intent.
Of all of the Florida cases which have stated that attempts are specific intent crimes, only Littles v. State involved an attempt to commit a crime which itself did not require a specific intent. However, Littles dealt only with the question of whether the crime of attempted second degree murder existed at all in the face of the argument that it would require proof that the defendant intentionally committed an unintentional act.
In the final analysis, we are unwilling to conclude that appellant must have had a specific intent to attempt to commit second degree murder when he would not have needed a specific intent had he accomplished his objective. To put it another way, if voluntary intoxication would not be a defense to appellant‘s consummated second degree murder of his father, it should not be a defense to appellant‘s abortive attempt to commit the same crime. We hold that the intent required to attempt to commit a crime is no greater than the intent necessary to commit the crime itself.
The rationale for our holding impliedly conflicts with the dictum of several decisions and specifically with the statement in Worthey v. State, 395 So.2d 1210 (Fla. 3d DCA 1981), that “[a]ll attempts are necessarily specific intent crimes whether the relevant completed offense is or not.” 395 So.2d at 1211. Therefore, pursuant to
AFFIRMED.
RYDER, J., and NELSON, WILLIAM J., Associate Judge, concur.