Getsie v. State

• Decision Date: 30 December 1966
• Docket Number: No. 215,215
• Citation: 193 So.2d 679
• Parties: John GETSIE, III, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 679

193 So.2d 679

John GETSIE, III, Appellant, v. STATE of Florida, Appellee.

No. 215.

District Court of Appeal of Florida, Fourth District.

Dec. 30, 1966.

Rehearing Denied Jan. 30, 1967.

Joseph A. Varon, Hollywood, and C. Wendell Harris, Vero Beach, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and James T. Carlisle, Asst. Atty. Gen., Vero Beach, for appellee.

KANNER, Associate Judge (Ret.).

Defendant-appellant, John Getsie III, was charged with and convicted of manslaughter in the fatal shooting of his wife. The basis for the State's prosecution of him was manslaughter through culpable negligence; Getsie's defense at the trial was that of accident. The only evidence under which the State sought to prove culpable negligence was the version of Getsie himself, there having been no other eyewitness.

Appealing, Getsie presents he sole question, 'Was the evidence adduced sufficient to convict defendant of the crime charged beyond and to the exclusion of a reasonable doubt where there was no other evidence legally sufficient to contradict defendant's explanation of the homicide?' The State rephrases the point to read, 'Whether the evidence was sufficient to sustain a conviction of manslaughter through culpable negligence?'

It appears factually that, at the time of the unfortunate occurrence, Getsie, 24 years of age, had been married to the deceased, Linda Jean, 21 years old, for 9 months. The time was the day after Christmas, the place the livingroom in the apartment of the two, where the presents were still under the Christmas tree. Getsie had been making a sandwich from the 20 pound turkey they had for Christmas. For more than a year, he had been a member of the auxiliary police of the City of Fort Lauderdale, and one of his presents was a new gun purchased by Jean and placed under the tree prior to Christmas. Among the other presents were a mixer and hair dryer from Getsie to Jean, a gun belt and new handcuffs for Getsie. Jean was playing with the hair dryer and its attachment for doing nails, put it back, and was sitting in a chair smoking a cigarette. Getsie picked up the gun and was admiring it; he was proud of it and was showing it to Jean, pulling the hammer back and forth and releasing it slowly with his index finger, seeing how it worked. He was like a child with a new toy. He had had experience with guns, had a permit, and had received certain training in the safe handling of weapons in the Navy and at the local firing range under supervision of a police sergeant. Jean told him not to be 'goofing around with the gun in the house.' He replied that nothing could happen, that he was careful and knew what he was doing with a gun. Getsie knew the gun was loaded.

Meanwhile, Getsie was walking over to the chair toward Jean, holding the gun, releasing the hammer as above described; he wasn't thinking of the gun being pointed at Jean at the time. By Getsie's statement given to the police, there was recorded the question relative to where the gun was pointed with Getsie's answer that he was pointing it at her; but by his testimony, he did not remember answering anything like that. He did not have the gun pointed straight ahead when he was walking toward Jean; he guessed it was about a foot and a half away from her; he started to sit on her lap or leg; she extended her right arm to greet him, holding a cigarette in her left hand. That was when the gun went off. There was no friction, ill will, or argument at the time; he loved his wife very much. After he saw she had been wounded, he called a neighbor to get an ambulance, administered mouth-to-mouth resuscitation, took off his shirt to put over his wife's wound.

The above is substantially the gist of Getsie's version as gleaned from his testimony and from the statement which he gave the police as he waited in the emergency room of the hospital while his wife was still in surgery, or was being operated on. By the police testimony, he was obviously and visibly upset at the time he gave the statement.

Both the mother and the sister of the deceased testified for Getsie. The mother went to the home of the couple on Christmas Eve, the sister on Christmas morning. Each had been shown the gun, the mixer, the hair dryer, and other presents under the tree. While the mother was there, Getsie, after showing her the gun, started putting the mixer together, showing her the grinder and so on, and told Jean to show her mother the nail filer on the hair dryer and all those things that went with it. Both the mother and the sister testified that Getsie had a good reputation. Getsie and his mother-in-law each stated that he had not wanted to go back to the apartment after Jean's death but lived with the mother-in-law.

Under his single appeal question, Getsie urges that his version constituted the only evidence of the events and circumstances of the occurrence, that it is uncontradicted by any other evidence adduced, that it does not demonstrate culpable negligence within the meaning of the manslaughter statute, section 782.07, F.S.A., and that the State failed to carry its burden of proof. For affirmance, the State contends that Getsie's own testimony and statement given to the police officers disclose culpable negligence sufficiently to support his conviction under the statute.

Culpable negligence within the contemplation of section 782.07 such as can sustain a conviction of manslaughter has been defined in Florida many, many times, as follows:

'To constitute manslaughter by 'culpable negligence', death must result from conduct of a gross and flagrant character, evincing reckless disregard of human life, or of safety of persons exposed to its dangerous effects, or there must be entire want of care which would raise presumption of conscious indifference to consequences or which shows wantonness or recklessness or grossly careless disregard of safety and welfare of public, or that reckless indifference to rights of others which is equivalent to intentional violation of them.'

Miller v. State, Fla.1954, 75 So.2d 312; Day v. State, Fla.App.1963, 154 So.2d 340; Fort v. State, Fla.1956, 91 So.2d 637.

For affirmance, the State relies upon the case of Williams v. State, 1925, 89 Fla. 475, 104 So. 782, saying that, under authority of it, the judgment of the trial court should be upheld. The Williams case, however, is distinguishable. There, the defendant was indicted for murder in the first degree under two counts, one alleging in effect that the accused, with a premeditated design to kill one C., shot and killed a child; the other alleging in effect that the accused, with a premeditated design to kill the child, did fatally shoot her. The defendant, convicted of manslaughter, appealed; and the supreme court affirmed the judgment of conviction. Since the State relies upon the Williams case, we have examined the original record. It appears that on the appeal the defendant contended the jury should have accepted her version that the fatal pistol shot which killed the child was the result of accidental discharge of the weapon, urging that the verdict of manslaughter was unsupported by the evidence. The State asserted it had produced evidence which proved that the firing of the pistol was not an accident but was with premeditated design to kill C., as charged in the indictment under the first count. In seeking to establish the guilt of the defendant, the State produced several witnesses who were present at the scene, while the defense offered only the testimony of the defendant. By the testimony, the dance hall where the shooting took place, as the witnesses referred to it, was a 'jouck'; and, in the words of one witness, '* * * there was lots of folks there'. It was undisputed that defendant held concealed in her lap a pistol and that its discharge killed the child. One witness, C., was seated upon a table when the bullet hit the child as she suddenly passed between him and the defendant, who was seated on a bench. There was testimony as to events and words, both before and after the shooting and at the time the child was shot to demonstrate the circumstances of defendant's possession of the pistol, why she had it, and what the situation was when the weapon discharged.

In affirming, the supreme court said:

'It appears that the accused, while sitting in a dance hall where there were a number of people, had a pistol in her lap, unseen by others, which she was handling. Whether she had the pistol for the purpose of shooting C., who was in the hall, as charged in the first count of the indictment, or had the pistol to take care of for another person, is not material, since it is evident that her possession and handling of the pistol at the place and under the circumstances was culpable negligence, if not unlawful; and the discharge of the pistol killed the child Bernice McCoy, who happened to be passing in front of the accused while she was with culpable negligence handling the pistol that was concealed in her lap.'

Again, the supreme court, in a more recent case, Tipton v. State, Fla.1957, 97 So.2d 277, held that criminal responsibility for manslaughter should be determined by consideration of the act which resulted in death in its surroundings at the time of its commission and not consideration of the result alone.

We therefore consider the act of Getsie leading to the death of his wife in its physical and factual surroundings at the time of its occurrence rather than giving consideration alone to the result. As opposed to the facts and circumstances of the Williams case, the place was the livingroom of Getsie's apartment on the day after Christmas; there were present only himself and his wife; Jean had been playing with one of her Christmas gifts from Getsie, Getsie picked up the gun which lay under the Christmas tree as a gift from his wife. His possession of the gun was both legal and in line with his work as an auxiliary policeman. He was not...