Anderson v. State

235 So. 2d 738, 1970 Fla. App. LEXIS 6442

Opinion

PER CURIAM.

Appellant was charged, tried and convicted of the offense of murder in the second degree by killing his victim by shooting her to death with a shotgun. By his sole point on appeal appellant challenges the correctness of the trial court’s order denying his requested jury instruction on the offense of aggravated assault.

At the conclusion of the trial the court properly instructed the jury on the law as it relates to the offense of murder in the second degree, murder in the third degree, manslaughter, justifiable and excusable homicide. Appellant requested in addition to the foregoing instructions a separate instruction on the offense of aggravated assault. It is appellant’s contention that this crime is a lesser offense included in the greater offense of murder in the second degree with which he was charged. It is our view that the trial court correctly refused to instruct the jury on the offense of aggravated assault as requested by appellant. Such a crime is not a lesser offense included within the greater offense of murder. This question was raised before the Second District Court of Appeal in the case of Sadler v. State,¹ and decided adversely to appellant’s contention. We agree to the decision in the Sadler case and hold that it controls the question presented here for review.

The judgment of the trial court is affirmed.

CARROLL, DONALD K., Acting C. J., and WIGGINTON and RAWLS, JJ., concur.

1 . Sadler v. State (Fla.App.1969) 222 So.2d 797.