Gillen v. State

Thomas Gillen raises four points on appeal from his conviction for second degree *376murder. We affirm his conviction but find one contention worthy of comment.

As a part of the homicide jury instructions the trial court gave the “long form” standard jury instruction on excusable homicide. That instruction provides as follows:

The killing of a human being is excusable, and therefore lawful, if committed by accident and misfortune.

In order to find the killing was committed by accident and misfortune, you must find the defendant was:

Give 1, 2 or 3 as applicable

1. a. doing a lawful act by lawful means…