Cannon v. State
| Citation | 91 Fla. 214,107 So. 360 |
| Parties | CANNON v. STATE. |
| Decision Date | 30 January 1926 |
| Court | United States State Supreme Court of Florida |
En Banc.
Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.
Bessie Cannon was convicted of manslaughter, and she brings error.
Reversed and remanded.
Syllabus by the Court
Person may be under influence of liquor without being intoxicated within statute as to manslaughter in driving automobile while intoxicated (Laws 1923, c. 9269, Rev. Gen. St. 1920 § 5563). Though all persons intoxicated by the use of alcoholic liquors are under the influence of intoxicating liquors, the reverse of the proposition is not necessarily true, for a person may be to some degree under the influence of intoxicating liquors without being in fact intoxicated.
Adding words 'being at time under influence of intoxicating liquor' to indictment sufficient to charge manslaughter does not vitiate it (Rev. Gen. St. 1920, § 5039). Where the language of an indictment is sufficient to charge the offense of manslaughter as defined in section 5039, Rev. Gen. Stats 1920, the adding of the words in the indictment, 'being at the time under the influence of intoxicating liquor,' may be treated as surplusage, and does not vitiate the indictment, not being an essential of the crime charged in the statute.
In prosecution for manslaughter by culpable negligence in operating automobile, evidence accused was under influence of intoxicating liquor is admissible (Rev. Gen. St. 1920, § 5039). Where a defendant is charged with manslaughter under section 5039, Rev. Gen. Stats. 1920, the gist of the charge in the indictment being the causing of the death of the deceased by culpable negligence in the operation of an automobile on the part of the defendant, evidence that the defendant was at the time of the injury under the influence of intoxicating liquor is admissible
Competency of circumstantial evidence is not determined by conclusiveness of inferences deducible therefrom; it being sufficient that they tend to elucidate inquiry. The competency of circumstantial evidence is not to be determined by the conclusiveness of the inferences which may be drawn from it; it is enough that these tend, even in a slight degree, to elucidate the inquiry.
Witness, who saw and had opportunity to observe acts, conduct, appearance, and statements of accused shortly after fatal injury, held competent to testify whether accused was or appeared to be under influence of intoxicants. A witness, who had seen and had an opportunity to observe the acts, conduct, appearance, and statements of the defendant at or near her automobile shortly after the fatal injury to the deceased, is competent to testify as to whether or not the defendant was or appeared to be under the influence of intoxicants.
On showing that offense was committed within jurisdiction, variance as to name of street or highway where injury occurred is not material, especially where accused was not misled. Where the evidence shows that an offense was committed within the jurisdiction of the court, that is, in this case, within the county where the prosecution was had, the exact location within the county is not required to be charged in the indictment, and a variance as to the name of the street or highway where the injury occurred is not material, especially where it does not appear that the defendant was misled thereby, or embarrassed in the preparation of her defense.
Circumstantial evidence must lead, on whole, to reasonable and moral certainty that accused, and no one else, committed offense, and facts must be inconsistent with innocence. When circumstantial evidence is relied upon of conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading, on the whole, to a reasonable and moral certainty that the accused, and no one else, committed the offense. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt; they must be inconsistent with innocence.
Abbott & Gaulden, of West Palm Beach, for plaintiff in error.
J. B. Johnson, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.
The plaintiff in error was indicted for manslaughter, Harold Fox being charged in the same count, by a sentence added at the end thereof, as accessory before the fact to the same offense, and the jury found both defendants guilty as charged, 'with recommendation of mercy for Harold Fox.' The defendant Bessie Cannon, plaintiff in error here, was sentenced to the penitentiary for a period of five years and has taken writ of error to review the judgment of conviction.
The gravamen of the charge against this defendant was that by her act, procurement, or culpable negligence she recklessly drove an automobile against and upon the body of Mrs. B. L. Carr, inflicting mortal wounds causing her death.
There was a motion to quash the indictment upon the ground, among others, that the indictment fails to sufficiently identify the offense sought to be charged so as to protect defendants or either of them after trial from danger of a future prosecution for the same offense and certain other grounds as to the insufficiency of the indictment as against Harold Fox, who is not a party to this appeal.
This indictment was evidently drawn under section 5039 of the Revised General Statutes of 1920, reading as follows:
'The killing of a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder, according to the provisions of this article, shall be deemed manslaughter, and shall be punished by imprisonment in the state prison not exceeding twenty years, or imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars.'
The last clause of section 5563 of the Revised General Statutes chapter 9269 of the Laws of 1923 reads as follows:
'* * * And if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter and, on conviction, be punished as provided by existing law relating to manslaughter.'
The language of the indictment, while sufficient to charge the offense defined in section 5039, the gist of one element of which is the culpable negligence of the defendant as being the cause of the death, was not sufficient to constitute a charge of manslaughter under this amendatory act. The additional words in the indictment, 'being at the time under the influence of intoxicating liquor,' are not, in the commonly accepted meaning of such words, synonymous with or equivalent to the words in the amendatory statute, which are 'while intoxicated.' Though all persons intoxicated by the use of alcoholic liquors are 'under the influence of intoxicating liquors,' the reverse of the proposition is not true; for a person may be under the influence of intoxicating liquors without being intoxicated.
It is true that chapter 9269, above referred to, amending section 5563 of the Revised General Statutes, makes it a misdemeanor for any person 'while in an intoxicated condition or under the influence of intoxicating liquors to drive' any automobile or motor vehicle on the streets or highways of this state, but it is only where death results from the operation of a motor vehicle by a person 'while intoxicated,' that is defined as manslaughter. In this connection, the words 'under the influence of intoxicating liquors' are omitted. The felony lies not in the driving of an automobile negligently while intoxicated, or under the influence of intoxicants, but in the killing of a person 'by the operation of a motor vehicle while intoxicated,' and in such case the question of culpable negligence in the driving of the automobile is not made an element of the crime. No doubt the law-makers based this statute upon the proposition that it is criminal negligence for a person in an intoxicated condition to attempt to drive an automobile upon the highways of this state, and that, if death results to any person while so doing, such initial negligence will be imputed to the act itself, and the driver held guilty of manslaughter. It is therefore plain that this indictment is predicated upon said section 5039 of the Revised General Statute; that it does not omit any requisite averment as to any of the elements of the offense under said section (Mills v. State, 51 So. 278, 58 Fla. 74); and that it does not constitute a charge of two separate and distinct offenses in the same count (Griswold v. State, 82 So. 44, 77 Fla. 505), though the latter is allowable in certain cases, where a statute makes either of two or more distinct acts, connected with same general offense and subject to the same punishment, indictable as distinct crimes. When in such cases such distinct acts are connected with the same general offense and committed by the same person at the same time, they may be coupled in the same count and constitute but one offense. Irvin v. State, 41 So. 785, 52 Fla. 51, 10 Ann. Cas. 1003.
As against the plaintiff in error, Bessie Cannon, the indictment is sufficient, without this allegation in regard to defendant being under the influence of intoxicating liquors, to charge her with manslaughter under said section 5039 and said allegation, not being necessary or essential to describe or charge the offense, and not descriptive of any matter necessary to be proved, may be treated as surplusage, not being essential to the charge of the crime defined in section 5039. This does not mean that testimony as to defendant being in such condition could...
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Williams v. State
...appearance, and also to give an opinion on the defendant's state of impairment based on those observations. See, e.g., Cannon v. State, 91 Fla. 214, 107 So. 360 (1926); City of Orlando v. Newell, 232 So.2d 413 (Fla. 4th DCA 1970). Objective observations based on observable signs and conditi......
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Filmon v. State
...of Florida on numerous occasions. Different results have obtained depending on the facts of each particular case. See Cannon v. State, 91 Fla. 214, 107 So. 360 (1926); Preston v. State, 56 So.2d 543 (Fla.1952); Smith v. State, 65 So.2d 303 (Fla.1953); Miller v. State, 75 So.2d 312 (Fla.1954......
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Rodriguez v. State
...negligence as being the equivalent of intentional or quasi-intentional behavior. But while it was indeed said in Cannon v. State, 91 Fla. 214, 221, 107 So. 360, 363 (1926), that culpable negligence is equivalent to an intentional violation of the rights of others, Cannon must be read in con......
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