Opinion
No. 2399.
July 29, 1970.
Appeal from Circuit Court, Orange County; George E. Adams, Judge.
F. Hartselle Baker and Hubert W. Williams, of Robertson Williams, Orlando, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Rodney Durrance, Jr., Asst. Atty. Gen., West Palm Beach, for appellee.
Affirmed.
CROSS, C.J., and McCAIN, J., concur.
WALDEN, J., dissents, with opinion.
I respectfully dissent because I believe the evidence was sufficient to require the trial court to instruct the jury as to the provision found in Section 782.02(2) (b), F.S. 1967, F.S.A. The instruction was not given, although there were sufficient facts and inferences as to allow the jury to find that the defendant justifiably committed the homicide in the lawful defense of defendant's wife according to the terms of this statute.
I would reverse and remand for a new trial.