constructi instruction reads. the next case is a-l-f-i-e-r-i. which is a fourth district court of appeal case from 1998. that stands for again simply the proposition under headnote 3. here again, we re talking about third degree felony murder in any felony murder prosecution the state must prove the underlying felony beyond a reasonable doubt. don t have to necessarily charge it although i submit the information contains the requisite requirements but we have to establish it. that is the reason the instruction language is given. finally, f-a-y-s-o-n versus state, which is 684 southern 2nd 270, a 1996 decision from the first district court of appeal. i m reading from page 2 of that copy. headnote 2. the facts in that case, they describe the similarity to another case called gonzalez.
there any objections to the instruction provided by the state, other than the changing of the names? to be in conformity? the reason for my hesitation is i m still trying to sort out the evolution of the instruction on manslaughter by act. of course, the court s aware, there are several ways that the state could claim manslaughter occurred. one of them is by culpable negligence, there s no suggestion there a s it s only by act. what gave me pause that i wanted to do some additional reach on is there is a case from the fifth district court of appeal, shurose, s sh u-r-o-s-e, that held and essential element of the crime of voluntary manslaughter, which is what manslaughter by act is, is an intent to kill. i ve been trying to sorting through that. i think maybe, since shurose may
aggravated battery and it can t get that until it ge gets convinces the court to include that mr. zimmerman is claiming that trayvon martin was committing an aggravated battery. this instruction that i provided is exactly the law and it s the instruction that s in the standard that relates to chapter 776. that s the justifiable use of force chapter and that s the language that we used in our instruction because that s the issue. in fact, judge, it s the only issue in the case. it s always been the only issue in the case. and that is, that a person is justified in using deadly force if he reasonably believes such force i necessary to prevent imminent death or great bodily harm to himself. that s the only issue. then that section goes on to say while resisting attempt to
says, then i suppose that we re past the holding in shurose, even though by sheppard dicing, it s still considered controlling in this district unless the supreme court has said otherwise. that s my hesitation, i m still trying to dig through that. do you want us to come back to that one? other than that, does the state s version of the instruction comport with the supre supreme court s required for manslaughter by act? it seems to, yes. so the only issue we have is your determination that the shurose case is covered by this instruction? yes. okay. we ll come back to that issue. thank you, judge. the other lesser included requested by the state, and i point out i included the next case, martin versus state, the 1977 decision of the florida supreme court, simply as the reas reason and i think i
initiated this or provoked it, it is rather the victim who provoked it. i think the facts testified to leave both inferences equally valid. there are facts to support both and that is the reason i think the instruction should be given to the jury. they re free to arg argue, that, what the defendant did either does not constitute provocation or the victim did all the provocation. i think the facts, as testified to by the eye and ear witnesses as well as the defendant s own statements and let me add to the fact that when you add on top of that, that the defendant s own statements, some of them have been shown to be materially, a, inconsistent with one another, and b, false, that those are inferences the jury could make that the defendant provoked this initial encounter. i m sorry. we had that argument sort of at the joa.