
    William Gene SNELL, Appellant, v. STATE of Florida, Appellee.
    No. V-173.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1974.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant seeks reversal of his conviction of murder in the second degree and the resulting sentence to life imprisonment, on the ground that the trial court refused a requested instruction on unnecessary killing to prevent an unlawful act, Florida Statute 782.11.

The record reveals that appellant went into a bar operated by one Rhea. Appellant ordered a beer which was served by Rhea. In the meantime harsh words passed to and fro between them. Appellant contends that Rhea advanced toward him saying “I’ll really mess you up this time”, whereupon appellant pulled a gun and shot Rhea twice.

Appellant defended on the theory of self defense and instructions relative thereto were given to the jury by the trial judge as were instructions as to excusable homicide, justifiable homicide and manslaughter.

Our examination of the record reveals that the jury was thoroughly and amply instructed and that the trial judge did not err in refusing appellant’s requested instruction based upon Florida Statute 782.-11. The facts sub judice are not such as those found in Whitehead v. State, Fla.App. 2nd 1971, 245 So.2d 94; Stinson v. State, Fla.App. 1st 1971, 245 So.2d 688 and Bagley v. State, Fla.App. 1st 1960, 119 So. 2d 400.

Appellant having failed to demonstrate prejudicial error, the judgment and sentence appealed are

Affirmed.

RAWLS, C. J., and BOYER, J., concur.

McCORD, concurs specially.

McCORD, Judge

(concurring specially).

Appellant interposed a plea of self-defense in the trial below and contends that under the evidence presented, he was entitled to a requested jury instruction under § 782.11, Florida Statutes, which states as follows:

“Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.-084.”

Appellee contends that it was not the intent of this statute to embrace an unnecessary killing under a claim of self-defense. I agree. The foregoing statute was originally enacted by the legislature in 1868 and from my research, I have not found that it has ever been applied as appellant seeks to have it applied here. Throughout the years and in our present standard jury inr structions, trial courts have included in their instructions upon the law of self-defense in homicide cases the following:

“Every person has the right to defend himself from a wrongful assault and, ii? doing so, may use such reasonable force as is necessary under the circumstances. But one who uses more force than is reasonably necessary to defend himself from attack, even though the attack be wrongful, by using more force than is reasonably necessary makes himself the aggressor and cannot justify his act as being in self-defense.
A person is not justified in killing or inflicting great bodily injury upon another in order to protect himself from slight or insignificant injury .... He cannot justify a killing in self-defense unless the circumstances were such that a reasonably cautious and prudent person situated as he was would have believed, and unless he did believe, that what he did was necessary to protect himself from death or great bodily injury. '
.A person cannot justify the killing of another on the ground of self-defense unless he has used all reasonable means within his power and consistent with his own safety to avoid the danger without the necessity of such killing.
If attacked by another, even though the attack be wrongful, he has the legal duty to retreat if by doing so he can avoid the necessity of killing his attacker without increasing his own danger, . . .”

In a first degree murder trial where the defense is self-defense, if the jury finds that the defendant unnecessarily killed the decedent, it can find him guilty of either first degree murder, second degree murder, or manslaughter. If, however, § 782.-11, Florida Statutes were applicable in such a case and the court charged the jury thereon, the charge would create an erroneous impression in the minds of the jurors that if the defendant was not acquitted, he could only be found guilty of manslaughter. In view of the statute’s long history of not having been applied to modify the common law responsibility for the use of excessive force in self defense, I would not now construe it as doing so. The standard jury instructions on self-defense adequately cover an unnecessary killing under a claim of self-defense.  