Hanemann v. State
| Decision Date | 13 March 1969 |
| Docket Number | No. J--357,J--357 |
| Citation | 221 So.2d 228 |
| Parties | Dudley George HANEMANN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert P. Miller, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., David U. Tumin, Asst. Atty. Gen., for appellee.
This appeal is taken by the appellant, Dudley George Hanemann, from a judgment and sentence of ten years imprisonment for the offense of manslaughter.
The information, containing two counts, was filed charging the defendant in Count I with the offense of manslaughter for causing the death of Lena E. Burns by his act, procurement, and culpable negligence in the operation of his automobile. Count II charged manslaughter through the operation of his automobile while under the influence of intoxicating liquor.
At the conclusion of their evidence, the State elected to proceed only on Count II of the information and Count I was dismissed. The trial was ultimately concluded with a verdict of guilty as charged on Count II.
On this appeal, the appellant challenges the sufficiency of the evidence to support the guilty verdict and claims that he has been placed twice in jeopardy for the same offense.
The tragedy from which this case arose occurred at Daytona Beach Shores in Volusia County on February 9, 1966, about 3:15 in the afternoon on a cool, hazy day.
Lena E. Burns, whose life the appellant is charged with taking, and Eileen T. Snyder were strolling on the Atlantic Ocean beach when they were struck and killed by an automobile which the appellant was identified as driving.
In his attempt to justify his position that the evidence is insufficient to support the guilty verdict, appellant relies on those cases that went to trial or in which verdicts were returned on charges of manslaughter by the act, procurement, or culpable negligence as provided for in Section 782.07, Florida Statutes, F.S.A.: Fowlkes v. State, 100 So.2d 826 (Fla.App.3d 1957); Jackson v. State, 100 So.2d 839 (Fla.App.1st 1958); Grimley v. State, 114 So.2d 630 (Fla.App.1st 1959).
The verdict before us for review was returned on the second count of the information that charged manslaughter through the operation of an automobile while under the influence of intoxicating liquor. This count was clearly intended to charge the defendant with the offense set out in Section 860.01, Florida Statutes, F.S.A., which provides:
'* * * 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, * * *.'
The second count then is a separate and distinct offense from the offenses of manslaughter through culpable negligence. Lowe v. State, 116 So.2d 254 (Fla.App.2d 1959). Therefore, the requirements for proof of guilt urged by the appellant are not germane to the proof of manslaughter by operation of a motor vehicle by a person while intoxicated.
An examination of the record discloses testimony from which the jury could conclude that Lena E. Burns was killed by a motor vehicle operated by the defendant; thus, the only question remaining is whether the evidence submitted to prove intoxication was sufficient. Hopper v. State, 54 So.2d 165 (Fla.1951).
Intoxication is defined as being under the influence of intoxicating liquor to such an extent as to deprive one of the normal control of one's body or mental faculties or both. Clowney v. State, 102 So.2d 619 (Fla.1958).
An examination of the record as it relates to the appellant's state of intoxication reflects that at about 1:00 P.M. on the day of the offense, the appellant was staggering like he was drunk, appeared to be sleepy, and was asking for a drink of something alcoholic. He was in a tavern between 1:30 P.M. and 3:00 P.M. where he drank several bottles of beer. While in the tavern, he was upset and shaking; he sat at the bar and cried. The deputy who arrested him between 6:00 and 7:00 P.M., some three hours after the victim was killed, testified that in his opinion the appellant was intoxicated and that he arrested him on that charge.
It is our opinion that above evidence is sufficient to allow the jury to find that the appellant was under the influence of intoxicating liquor to such an extent as to deprive him of his normal ability to control his body and his mind. The jury could then conclude and did conclude that the appellant was intoxicated when his motor vehicle struck Lena E. Burns.
The appellant's contention of double jeopardy arises out of his acquittal of manslaughter charges for the death of Eileen T. Snyder, who was killed at the same time and by the same incident as Lena E. Burns.
This contention was before this court by petition for writ of prohibition in State ex rel. Hanemann v. Wingfield, 202 So.2d 131. We held that the petition was not well founded and denied it on authority of State v. Lowe, 130 So.2d 288 (Fla.App.2d 1961). The appellant has given no reason why this holding should now be changed and we adhere to that earlier ruling.
On the 17th day of March 1966, the State's Attorney in and for the Seventh Judicial Circuit, Volusia County, Florida, filed two separate informations against Hanemann, one of which charged manslaughter of Eileen T. Snyder, and the other charged manslaughter of Lena E. Burns. Both informations contained two counts each (culpable negligence, and while under the influence of intoxicating liquor) and the language was identical in each information except for the name of the decedent. Hanemann pleaded not guilty as to each information. He was put to trial on both counts of the information naming decedent Eileen T. Snyder, and acquitted upon a jury verdict of not guilty. It is without contradiction that the same evidence adduced in Hanemann's trial concerning Eileen T. Snyder's death was adduced in the instant cause as to the death of Lena Burns.
State ex rel. Hanemann v. Wingfield 1 was founded upon the decision of our sister court in State v. Lowe. 2 The Lowe case relied principally upon the Supreme Court's holding in McHugh v. State. 3 In McHugh the defendant was charged by two separate informations with manslaughter for killing two boys while operating his automobile in such a manner as to collide with the motor scooter on which the boys were riding. Upon...
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Baker v. State
... ... This he must concede in view of a considerable line of cases construing the statute. Roddenberry v. State, Tootle v. State, 98 Fla. 469, 130 So. 912 (1930); Cannon v. State; Hanemann v. State, 221 So.2d 228 (Fla. 1st DCA 1969); Lemming v. State, 159 So.2d 486 (Fla. 2d DCA 1964). The most apt description of the offense is set forth in Roddenberry : ... It is the appellant's assertion that the instructions given by the court did not include all of the elements of the offense ... ...
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Harrison v. State
... ... Seidschlaw, 304 N.W.2d 102, 107 (S.D.1980); State v. Irvin, 603 S.W.2d 121, 124 (Tenn.1980); State v. Myers, 298 S.E.2d 813, 815 (W.Va.1982); State v. Rabe, 96 Wis.2d 48, 291 N.W.2d 809, 821-22 (1980); Vigil v. State, 563 P.2d 1344, 1351 (Wyo.1977); Hanemann v. State, 221 So.2d 228, 230 (Fla.Dist.Ct.App.1969). We, therefore, agree with the holding of the San Antonio court of appeals that there is no violation of double jeopardy ... In deciding the Rathmell case as it did, the court there stated: ... Before considering the jeopardy ... ...
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Martin v. State
... ... 4 Swindle v. State, Fla.App.2d 1971, 254 So.2d 811 ... 5 See also United States v. De Angelo, 3 Cir. 1943, 138 F.2d 466; Note, Twice in Jeopardy, 75 Yale L.J. 262, 283--286 (1965); Mayers & Yarborough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 29--43 (1960); Hanemann v. State, Fla.App.1st 1969, 221 So.2d 228; cert. den., Hanemann v. State, Fla.1969, 228 So.2d 382; vacated ... ...
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Sands v. State, 75--731
... ... as to deprive him of full possession of his normal faculties,' is equivalent to 'being intoxicated' as used in § 860.01, Fla.Stat. Clowney v. State, supra; Hanemann v. State, Fla.App.1969, 221 So.2d 228. It follows then that 'damage to property or person of another, other than damage resulting in death ... by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties,' is a ... ...