Ates v. State
| Decision Date | 30 June 1939 |
| Citation | 194 So. 286,141 Fla. 502 |
| Parties | ATES v. STATE. |
| Court | Florida Supreme Court |
On Rehearing February 16, 1940.
Further Rehearing Denied March 14, 1940.
Error to Court of Record, Escambia County; L. L. Babisinski, Judge.
Thomas Ates was convicted of manslaughter, and he brings error.
Affirmed.
On Rehearing.
COUNSEL J. McHenry Jones and R. H. Merritt, both of Pensacola, and T. Franklin West, of Milton, for plaintiff in error.
George Couper Gibbs, Atty. Gen., and Thomas J Ellis, Asst. Atty. Gen., for defendant in error.
Plaintiff in error was charged with manslaughter by culpable negligence under Section 7141, C. G. L. 1927, and by driving an automobile while intoxicated under Section 7749, C. G. L 1927, and was convicted upon the latter count, being the second count of the information.
Mr William Fisher was retained by the family of the deceased to assist in the prosecution. He made the opening statement to the jury, examined a number of the witnesses, but was not sworn as an assistant county solicitor. An objection to Mr. Fisher conducting the examination was made by plaintiff in error each time he began an examination of a witness, and at the close of the case the plaintiff in error moved the court for a mistrial based upon this fact. The mistrial was not granted. Plaintiff in error assigns this ruling as error.
This Court has held that, where there is no express statutory prohibition, the state attorney may obtain, with the consent of the court, the assistance of other counsel, and other members of the bar are not incompetent to be engaged for such assistance and taking part in the trial by reason of being retained and compensated by the prosecuting witness, the party injured by the crime, or other private interests. Thalheim v. State, 38 Fla. 169, 20 So. 938; Robinson v. State, 69 Fla. 521, 68 So. 649, L.R.A.1915E, 1215, Ann.Cas.1917D, 506; Oglesby v. State, 83 Fla. 132, 90 So. 825. Nor is it necessary that the private counsel be sworn in as an assistant state attorney. Jerry v. State, 99 Fla. 1330, 128 So. 807.
The burden is on plaintiff in error to show that the participation of private counsel in the prosecution of the case was prejudicial. Hanshaw v. State, 106 Fla. 865, 143 So. 753.
The record shows that the county solicitor was present at the trial and in charge of same. It does not appear that the prosecution degenerated into a private persecution, nor that the administration of the criminal law was made a vehicle of oppression, or of the accomplishment of private gain or advantage. See Oglesby v. State, supra. There was no error in the lower court's ruling as to this contention of plaintiff in error.
There is ample substantial evidence in the record to support the allegations of the information, and there is also ample substantial evidence in the record to show that plaintiff in error was under the influence of intoxicating liquor to such an extent as to deprive him of full possession of his normal faculties. See Myers v. State, 99 Fla. 872, 128 So. 11; Patterson v. State, 128 Fla. 539, 175 So. 730; Whitman v. State, 97 Fla. 988, 122 So. 567; Cannon v. State, 91 Fla. 214, 107 So. 360; Hobbs v. State, 83 Fla. 480, 91 So. 555; Shaw v. State, 88 Fla. 320, 102 So. 550; Graives v. State, 127 Fla. 182, 172 So. 716.
The judgment is affirmed.
TERRELL and THOMAS, JJ., not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
On Rehearing en Banc.
Pursuant to rehearing granted subsequent to the filing of our opinion and judgment of June 30, 1939, we have heard oral argument on the merits and have again considered the record and briefs.
The main question argued was the sufficiency of the evidence. It is a border-line case in which there was substantial evidence upon which a fair and impartial jury might have either convicted or acquitted.
The jury resolved the evidence against the accused and the trial court approved the verdict in denying new trial. We cannot usurp the province of the jury and, therefore, our opinion and judgment, supra, must be adhered to.
So ordered.
DISSENTING
On consideration of the record in this case in the light of oral argument presented on rehearing granted, it appears to me that the judgment should be reversed.
The defendant was convicted for violation of the provisions of Chapter 11809, Acts of 1927. The partinent part of that Act is:
So it is apparent that the language of the Act contemplates that the intoxication of one driving an automobile on the public highway to make such person criminally liable because of damage to property or person of another...
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State v. Martineau
...rel. Koppers v. Intern. Union of Oil, Chemical and Atomic Workers, 171 W.Va. 290, 298 S.E.2d 827, 829–30 (1982) ; Ates v. State, 141 Fla. 502, 194 So. 286, 286–87 (1939) ; Brown v. State, 242 Ga. 536, 250 S.E.2d 438, 439 (1978) ; State v. Addis, 257 S.C. 482, 186 S.E.2d 415, 417 (1972) ; Pe......
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State v. Martineau, 2001-681.
...v. ex. rel. Koopers v. Intern. Union of Oil, Chemical and Atomic Workers, 171 W.Va. 290, 298 S.E.2d 827, 829-30 (1982); Ates v. State, 141 Fla. 502, 194 So. 286, 286-87 (1939); Brown v. State, 242 Ga. 536, 250 S.E.2d 438, 439 (1978); State v. Addis, 257 S.C. 482, 186 S.E.2d 415, 417 (1972);......
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State v. Costello
...can, nevertheless, be sustained under the negligent homicide statute. Barrington v. State, 145 Fla. 61, 199 So. 320; Ates v. State, 141 Fla. 502, 194 So. 286; Graives v. State, 127 Fla. 182, 172 So. The Wisconsin negligent homicide act provides: "Any person who by operation of any vehicle w......