Wenzel v. StateWenzel v. State
Appellant was charged with second degree murder and was convicted of third degree murder. On appeal he contends that the trial court erred by: (1) failing to instruct the jury on excusable homicide; (2) instructing the jury on third degree murder without instructing on an underlying felony; and (3) failing to give аppellant’s specially requested instruction on justifiable homicide.
On the night of November 3, 1981, George Southerland, Joyce Gunter, and Winston Shiver met at the 39 Truck Stop Restaurant in Plant City. As they were sitting in a booth, appellant and Eddie Yon entered the restaurant. The apрellant was wearing a cowboy hat and had two earrings in one ear. Shiver addressed а disparaging remark to appellant. The appellant sat in the adjoining booth аnd words were exchanged.
Eventually, Southerland, Gunter, and Shiver left the restaurant and proceeded to Southerland’s car. The three of them sat in the front seat with Shiver on the passenger side. Shortly thereafter, appellant and Yon pulled up to the passenger side of the car in a pickup truck. Appellant asked Shiver and his companions whаt their problem was. According to Southerland, Shiver got out of the car and appellant shot him. Appellant then fired at Southerland. Southerland attempted to return fire, but only one bullet was successfully fired. Southerland denied firing his gun first.
Appellant testified that when Shiver exited the car, he said he was “going to get me a queer cowboy.” As Shiver reached into his pоcket, appellant picked up a pistol from the front seat of the pickup truck and pointed it out the window. Appellant then said he saw a flash and by reflex fired the pistol, killing Shiver. Appellant fired two more shots in the direction of the flash and fled.
The court instructed the jury on second degree murder, third degree murder, manslaughter, and justifiable homicide. The court refused appellant’s request to instruct on excusable homicide. No instruction was requested or given on any underlying felony to third degree murder. The court gave the standard jury instruction on justifiable homicide but denied appellant’s specially requested instructiоn on the same subject.
Where there is any evidence which supports a theory of the defense, a defendant is entitled to have the jury ⅛ structed on the law applicablе to his theory when he so requests. Bryant v. State,
As to the trial court’s failurе to instruct the jury concerning an underlying felony to third degree murder, we find that appellant did not preserve this issue for appellate review. To meet the objectives of the contemporaneous objection rule, an objection must be sufficiently specific both to apprise the judge of the putative error and to preserve the issuе for intelligent review on appeal. Castor v. State, 365
Finally, we find no errоr in the trial court’s refusal to give appellant’s specially requested instruction on justifiаble homicide. The proposed instruction was as follows: “If the killing of one party is exсusable or justifiable, then the unintended killing of another party is also excusable or justifiablе.” A review of the evidence in this case clearly demonstrates that such an instruction would have been inappropriate. There was no basis to suggest that appellant’s unintentional killing of one party was predicated upon excusable or justifiable conduct directed toward another.
We hold that the trial court erred in failing to instruct the jury on excusable homicide. Accordingly, the judgment and sentence is reversed and the cаse is remanded for a new trial.
Notes
. In light of our disposition of this case, we need not address appellant’s fourth point which involves an alleged sentencing error.
. Homicide is not unlawful if excusably or justifiably committed. Therefore, the court’s refusal to give any instruction whatsoever on excusable homicide may have been error, even if it could be said that there was no evidence to support the defense. See Henry v. State,