Fortner v. State
| Decision Date | 27 April 1935 |
| Citation | 161 So. 94,119 Fla. 150 |
| Parties | FORTNER v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Pinellas County; John U. Bird, Judge.
Parker Fortner was convicted of assault with intent to commit manslaughter, and he brings error.
Reversed and remanded for new trial.
Kelly & Casler, of Clearwater, for plaintiff in error.
Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
An extensive review of the evidence in this case would contribute nothing of permanent value to the jurisprudence of this state, hence will be omitted from this opinion.
Plaintiff in error, Parker Fortner, being dissatisfied with a sentence to ten years' hard labor imposed on him pursuant to his indictment, trial, and adjudication of guilty of assault with intent to commit manslaughter alleged to have been by him perpetrated upon one Jimmie Oswald with a knife, places his chief reliance for reversal upon the doctrine heretofore laid down in Council v. State, 111 Fla. 173, 149 So. 15, wherein this court held that a conviction for assault with intent to murder will be reversed for legal insufficiency of the evidence, where the evidence upon which the conviction was obtained bears earmarks of falsehood and uncertainty that stamp it as wholly unreliable as a predicate upon which to adjudicate an accused guilty of a serious felony.
Fortner's case now before us on appeal is in all of its essential particulars and circumstances analogous to that of Ed C. Raker v. State, 84 Fla. 277, 94 So. 613, wherein the evidence was examined and found not to warrant a verdict of assault with intent to commit murder in the second degree of which the defendant has been found and adjudged to be guilty.*
On authority of Council v. State, supra, and Raker v. State, supra, the judgment in this case is reversed for a new trial.
Reversed and remanded for a new trial.
CONCURRING
I concur in the opinion of, as well as the conclusion reached by, Mr. Justice DAVIS that the judgment of conviction in this case should be reversed, but in regard to the question of 'intent to kill,' as an element of the offense of assault with intent to commit manslaughter, which is not referred to in the opinion, but is discussed in a footnote thereto, I think some further comments might well be made upon what is said in the opinion of Mr. Justice BUFORD.
The question thus raised is complicated and made difficult by reason of the fact that under our statute the crime of manslaughter may be committed where there is no intent to kill whatever, such as cases where the death of the person killed is caused by 'culpable negligence' of the accused. In this class of cases, I do not see how any one could be convicted of the crime of assault with intent to commit manslaughter, because the element of intent need not be present at all in the crime itself. On the other hand, there is a class of cases where the intent to kill is an element of the crime of manslaughter. The crime of assault with intent to commit manslaughter has reference to manslaughter of this latter type, and may be sustained by evidence showing an unlawful assault with the intent to kill, though without premeditated design. Then there are certain special statutory kinds of manslaughter, defined by sections 7146-7149, C. G. L. from which the intent to kill is either expressly or impliedly excluded.
At common law manslaughter consisted in the unlawful killing of another without malice either express or implied. It was commonly divided into voluntary and involuntary manslaughter. Voluntary manslaughter was the intentional killing of another in a sudden heat of passion due to adequate provocation, and not with malice. Involuntary manslaughter consisted in the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself. At common law there was no such offense as assault with intent to commit manslaughter.
Our general statute on the subject of manslaughter, section 7141, C. G. L., appears to cover, in substance, both voluntary and involuntary manslaughter as they existed at common law, and reads 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.'
We also have a section 7165, C. G. L., which deals with assaults with intent to commit felonies punishable with death or by imprisonment for life, but which is not pertinent here.
In 30 C.J., on pages 27, 28, it is said: (Italics supplied.)
In Newborn v. State, 73 Fla. 1064, 75 So. 581, 582, cited in the opinion of Mr. Justice DAVIS, this court said:
In the case of Feagle v. State, 55 Fla. 13, 46 So. 182, the second and third headnotes read as follows:
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