Opinion
No. K-128.
November 19, 1968.
Appeal from the Criminal Court of Record for Duval County, Warren A. Nelson, J.
T. Edward Austin, Jr., Public Defender, and Ralph W. Nimmons, Jr., Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
Appellant seeks reversal of the judgment of conviction of aggravated assault entered against him after trial by jury. The information charged appellant with manslaughter in that he was alleged to have killed his landlord by striking him in the head with an ax.
There were eyewitnesses who testified that appellant committed the act charged. The jury returned its verdict on the lesser offense of aggravated assault.
For reversal, appellant contends that the trial judge erroneously instructed the jury on the elements of the crime of aggravated assault, whereas he was charged with the crime of manslaughter. No objection was made to the questioned instruction at the time it was given.
Appellant's claim for reversal is not well founded. Section 918.10(4), Florida Statutes, F.S.A., clearly states that the giving or failure to give an instruction by the trial judge may not be urged as error for reversal unless objection thereto was made before the jury retires to consider its verdict. See also Jones v. State, 197 So.2d 829 (Fla.App.3d 1967) and cases cited therein.
Affirmed.
WIGGINTON, C.J., and CARROLL, DONALD K., and SPECTOR, JJ., concur.