299 So. 2d 143 | Fla. Dist. Ct. App. | 1974
In defending against this appeal taken by Gregory Edward White from the judgment convicting him of the crime of aggravated assault, the State has escaped Scylla, only to be engulfed by Charybdis.
However, when the definition of aggravated assault was read to the jury in charge, they were not told, as comprehended by the precise language of the Standard Jury Instructions in Criminal Cases, # 2.-05,
Reversed.
. “The standard instruction to the jury was the culmination of extensive work by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, which Committee was composed of many very able jurists and trial attorneys. Any substantial deviation from use of these instructions will almost always end in error on the part of the trial court.” Bryan v. State, Fla.App. 1, 1972, 271 So.2d 197, 199.
. “Q Did you actually see this object that hit you coming through the air and hit you?
“A No, sir.
“Q You just felt it hit you and heard it hit you?
“A Yes, sir.
“Q Did you see the person who threw the bottle at you?
“A No, sir.”
. The State in its brief argues, not unimpres-sively, that the “well-founded fear of . violence being done” language in a charge on aggravated assault “is a stupid requirement and one which must be rejected, out of hand, as meaningless” — and as operating to “reward the stealthy assailant and punish the straightforward one who literally telegraphs the aggravated assault lie is going to make.” But entirely brushing aside our own definition in Bass and that of the Second District Court of Appeal in Albright, what of the Supreme Court’s leading case of Motley? “A District Court of Appeal does not have the authority to overrule a decision of the Supreme Court of Florida”, Hoffman v. Jones, Fla., 1973, 280 So.2d 431, 440 [15]. There is necessity and reason for this; and the District Courts of Appeal should not be thought of in the same breath as the gallant troops of England concerning whom Tennyson wrote in his Charge of the Light Brigade, “Theirs not to make reply, theirs not to reason why, theirs but to do and die” — since the subjective realization on the part of the victim that he is being outraged is an easily understood ingredient of some of the “aggravation” going to make up an “aggravated” assault. Besides, for those who do strike from darkness, posts of concealment, or positions of non-detection, in contradistinction to frontally, our Legislature, in instances wherein “great bodily harm, permanent disability, or permanent disfigurement” results, has created the statutory crime of aggravated battery which, alike with aggravated assault, is “a felony of the third degree.” Sec. 784.045, FSA.