Opinion
No. 74-194.
September 27, 1974. Rehearing Denied October 24, 1974.
Appeal from the Circuit Court for Orange County, Peter M. de Manio, J.
Richard S. Rhodes, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
Upon review of the evidence in the record we are of the opinion that the defendant was entitled to have the jury instructed on the law applicable to his theory of self-defense. Regardless of how weak or improbable defendant's testimony may have been with respect to the circumstances leading up to the charge of assault and battery, defendant was entitled to the requested charge on self-defense and it was the jury's function to determine that issue. Kilgore v. State, Fla.App. 1972, 271 So.2d 148; McCoy v. State, Fla.App. 1965, 175 So.2d 588. It was error for the trial court to refuse to recognize the existence of self-defense as an issue and instruct the jury accordingly. For the foregoing reason the judgment appealed from is reversed and the cause remanded for a new trial.
Reversed and remanded.
WALDEN, MAGER and DOWNEY, JJ., concur.