Diehl v. State

• Decision Date: 02 January 1935
• Citation: 117 Fla. 816,158 So. 504
• Parties: DIEHL v. STATE.
• Court: Florida Supreme Court

158 So. 504

117 Fla. 816

DIEHL v. STATE.

Florida Supreme Court, Division A.

January 2, 1935

Error to Criminal Court of Record, Dade County; E. C. Collins Judge.

John Diehl was convicted of manslaughter, and he brings error.

Reversed.

COUNSEL George A. Worley, Jr., of Miami, for plaintiff in error.

Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

Fred Botts, of Miami, as amicus curiae.

OPINION

ELLIS Justice.

On the 3d day of July, 1933, Marie Antoinette Carey, about thirteen years of age, was killed near the city of Miami, Fla., by an automobile driven by John Diehl.

The little girl, in company with another about her age, had placed a table about six feet south of Sixty-Second Street Northwest and near its intersection with Seventh avenue. The girls were engaged in selling fireworks and used the table on which to display their goods.

The automobile, which was driven by Diehl, approached on Sixty-Second street from the west, traveling at a speed of about forty-five or fifty miles an hour. The time of day was between 4:30 and 5 o'clock in the afternoon. About ninety-five feet west from the fireworks stand the automobile struck a 'trailer,' presumably a small vehicle of the kind sometimes attached to the rear of an automobile and used to carry small parcels. No clear description of the trailer is given in the record. After striking it the automobile proceeded along the south side of the road a short distance crossed the curbing of the street to the land immediately adjacent, struck the little girl, demolished the table collided with a cement or rock column about four feet square, demolished that, and collided with a telephone pole. The driver of the car was thrown to the ground. Some of the persons who witnessed the tragedy or were near went immediately to the wrecked automobile, others to the body of the little girl nearby. The child was killed. The driver of the automobile was unconscious. The odor of whisky was strong on his breath. He was taken to a hospital, and recovered from his injuries.

On the 10th day of July, a week later, an information was filed in the criminal court of record for Dade county against Diehl, charging him with the killing of the child by an act of culpable negligence constituting manslaughter under the statute. See section 7141, Comp. Gen. Laws 1927 (section 5039, Rev. Gen. St. 1920).

After entering a plea of not guilty the accused was placed on trial on July 14th and convicted of the offense charged and sentenced to confinement at hard labor in the state penitentiary. To that judgment he took a writ of error and assigned forty-seven errors, on which he seeks a reversal of the judgment. The brief filed in behalf of the plaintiff in error treats of nine questions which counsel maintain are involved in the case.

The first relates to the sufficiency of the information. It is contended that the allegations of the information are not sufficiently clear as to the manner in which the wounds were inflicted upon the deceased to sufficiently 'inform the defendant as to nature of the charge, and so as not to mislead or embarrass him.'

The point was raised by a motion to quash the information, three of the grounds of which were framed in general terms alleging vagueness and uncertainty, and that the information charged no offense. The fourth ground alleges that the information does not allege that the 'defendant inflicted mortal wounds in or upon the body of the deceased by any direct averment, but merely by way of recital.'

The case of Kauz v. State, 98 Fla. 687, 124 So. 177, cited by counsel in support of the point, has no bearing upon it. The judgment was reversed because, Kauz having been charged with a dependent offense in the mode of the common law, and the persons charged as principals not having been convicted, but, on the contrary, their plea of guilty having been withdrawn and a nolle prosequi entered by the county solicitor, no judgment of conviction could be pronounced against them, it was held that no valid judgment of conviction could be entered against Kauz.

The information in this case charged Diehl with the offense of manslaughter in the following language:

'The said John Diehl did then and there drive and operate unlawfully, carelessly, recklessly, and with culpable negligence, and with a reckless disregard for the life and safety of others, at a rate of speed greater than was reasonable and proper, having regard to the width, traffic and use of said highway, and so as to endanger the life and limb of persons using the said highway, and did then and there, by his act, procurement, and culpable negligence as aforesaid, drive and operate and ride the said motor vehicle upon, in, against and over the body of the said Marie Antoinette Carey, then and there inflicting on, in, and upon the body of the said Marie Antoinette Carey mortal wounds, a further and more particular description of said mortal wounds being to the County Solicitor unknown, of and from which said mortal wounds the said Marie Antoinette Carey did then and there die.'

The criticism of this language is grammatical rather than legal. Exception is taken to the phrase, 'then and there inflicting,' which counsel contends shows 'no connection between the alleged culpable negligence with the inflicting of the mortal wounds'; that, if the word 'thereby' had been used instead of the phrase next above quoted, 'possibly it would have been sufficient.'

The test of the sufficiency of an information or indictment as to certainty and definiteness is whether the language is so vague, inconsistent, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. See Barineau v. State, 71 Fla. 598, 72 So. 179; Disney v. State, 72 Fla. 492, 73 So. 598; Barrentine v. State, 72 Fla. 1, 72 So. 280, 282.

In the latter case the doctrine was repeated that: 'It is the declared policy of the Legislature, as well as of this court, to uphold indictments and informations whenever there has been a substantial compliance therein with the statutory requirements.'

The information is sufficiently clear in setting forth the manner of the death of the child, that is to say, the particular mode by which the death was caused. It is charged that the accused recklessly and with culpable negligence, and in disregard of the life of others, drove the motor vehicle upon, against, and over the body of the child, then and there inflicting upon her body mortal wounds of and from which she died. The use of the present participle of the verb 'inflict' does not plunge the entire allegation into an inconsistent or doubtful statement as to the manner of the child's death. The word shares the construction of the verb from which it is derived, and has the meaning in the connection used of causing the wounds upon the child by driving the automobile upon her.

The information may not attain to the degree of certainty required in a dilatory plea such as a plea in abatement, but it is not so vague and inconsistent as to have endangered the accused by another prosecution for the same offense or to have embarrassed him in the preparation of his defense.

The motion to quash was therefore properly overruled.

The next question is, Was the accused allowed a reasonable time in the circumstances for the preparation of his defense? The point was presented in the trial court by a motion for a continuance. The motion was supported by the affidavit of the accused which implies that some of the facts set forth were made on information and belief which the affiant believes to be true, and that he does not believe that he could safely go to trial because he has not had sufficient time to prepare his defense. The offense of which he was accused occurred on July 3, 1933. The information was filed on July 10th, seven days later. He was arraigned and brought to trial on the 14th of the same month. It was alleged that the accused was also injured in the transaction in which the child was killed; that, as a result of his injuries, he had been up to the time of his motion confined in the hospital ward of the Dade county jail, and has been in such a 'physical and mental condition that he has been unable to properly confer with his counsel and make preparation for his defense.' There are no allegations of fact to sustain the statement that either his mental or physical condition precluded him from properly conferring with his counsel, or that he had made any effort to engage one between the time of his regaining consciousness and the date on which he was arraigned upon the information.

It was alleged that he was detained in jail and denied bail, but it is not shown how that fact precluded either the engagement of counsel by him or the preparation of his defense, neither is it alleged that his counsel, if he had engaged one, was deprived of reasonable opportunities to confer with him. The affidavit contains a lengthy statement to the effect that shortly before the accident he had allowed a stranger to enter the automobile and had permitted him to drive it for a while; that the strange person managed in some way to 'drug or otherwise cause this defendant to become in an unconscious condition for the purpose of robbery' as the affiant believed. The statement was based upon the fact, as alleged in the motion, 'that certain valuable personal property was taken from his possession either before or immediately after the accident above referred to.'

The affidavit alleges that, if the cause should be continued, he believed he could furnish bail acceptable to the sheriff and could 'find persons who...