Cunningham v. State, 79-1628

• Decision Date: 01 July 1980
• Docket Number: No. 79-1628,79-1628
• Parties: Frank CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 721

385 So.2d 721

Frank CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.

No. 79-1628.

District Court of Appeal of Florida, Third District.

July 1, 1980.

Bernard S. Yedlin, Miami, for appellant.

Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.

Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.

HENDRY, Judge.

The appellant was convicted of manslaughter, in a trial by jury. At the close of all the evidence, motion was made for judgment of acquittal. ¹ Appeal is made to this court from the denial of that motion.

"(T)he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The purpose of a motion for judgment of acquittal is to challenge the legal sufficiency of the evidence, and where the state has brought forth competent evidence to support its claim that each element of the crime has been performed, a judgment of acquittal will not lie. Downer v. State, 375 So.2d 840, 845 (Fla.1979). The question is: "(C)ould the jury as reasonable men find the defendant guilty beyond and to the exclusion of a reasonable doubt? If his answer is affirmative, the trial judge must deny the motion; if it is negative, he must grant the motion." Weinshenker v. State, 223 So.2d 561, 563 (Fla. 3d DCA 1969). We find that the evidence adduced at trial was legally sufficient to support the jury's verdict; thus, we affirm.

Manslaughter is "(t)he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification . . . and in cases in which such killing shall not be excusable homicide or murder . . . ." § 782.07, Fla.Stat. (1980). Thus the two affirmative elements of the offense are (1) the killing; and (2) a causative link between the death of the victim and the act, procurement, or culpable negligence of another. It is the latter ingredient of the crime that appellant claims is missing in the facts sub judice.

On the day the victim met his death, appellant had joined a neighborhood convocation devoted to dice and hard liquor. After some hours, some money and some liquor had passed, appellant sustained what he rightly regarded as an insult. He left on foot, shortly to return in his automobile, having retrieved from his home a shotgun with which he intended to disperse the assemblage. Still sitting at the wheel, appellant directed a blast into the air. The thunderous report, contained as it was in the metal cannister of the car's interior, further loosened appellant's already tenuous hold on the situation.

The victim had joined the congeries of gamesters in appellant's absence; however, evidently, he had independently reached the same mood, and the same state, as they. In short, he was not to be trifled with.

To the victim, the gun was an irritant nothing more. Stolidly indifferent to the danger, he decided to take the weapon from appellant. Approaching appellant's automobile, the victim grasped the barrel of the shotgun, which protruded through the open window, and sought to extract it. Appellant, though dazed, remained firmly attached to the other end. The comments with which the victim accompanied his efforts were completely inaudible to appellant, whose ears still rung with the reverberation of the earlier blast; however, he imagined them to be threats, and his grip tightened. The victim tugged one last time; the gun fired; the victim died.

In logic, all the antecedents which coalesce in the occurrence of an event are its causes; the concern of the law is more immediate. At civil law, fault is the question, and the notion of "proximate cause" is designed to shade out all but those antecedents most immediately responsible for an event.

This court has twice employed the doctrine of proximate cause in cases of criminal homicide. In Karl v. State, 144 So.2d 869 (Fla. 3d DCA 1962), the appellant's conviction for the manslaughter of his young step-son was affirmed, on the basis that a reasonable jury could have found that the beating the step-father administered "was the proximate cause of the death".

In J. A. C. v. State, 374 So.2d 606 (Fla. 3d DCA 1979), we reversed the vehicular homicide conviction of a participant in a fatal drag race, on the ground that the intervening act of the passenger-decedent, which was the cause-in-fact of the fatal accident, was sufficiently unrelated to the appellant's wrongful act as to render the latter a remote cause: The legal causation necessary to convict the appellant was missing; the proximate cause of...