Hopper v. State
| Decision Date | 10 August 1951 |
| Citation | 54 So.2d 165 |
| Parties | HOPPER v. STATE. |
| Court | Florida Supreme Court |
Hubbard & Carr, Miami, for appellant.
Richard W. Ervin, Atty. Gen. and Murray Sams, Jr., Asst. Atty. Gen. for appellee.
The defendant-appellant Hopper was informed against in two counts by the County Solicitor of Dade County, Florida. The Court at the trial directed a verdict of not guilty as to count one but submitted the case to the jury under count two, which was drafted under the provisions of Section 860.01, F.S.A. This count charged that Hopper, while intoxicated, on January 7, 1950, unlawfully drove an automobile in Dade County, Florida, upon and against the body of Richard Allen Kane and inflicted certain mortal wounds which caused Kane's death. The jury, after hearing all the evidence, rendered a verdict of guilty of manslaughter. A motion for new trial was made and denied, when the trial court sentenced the appellant to serve a period of five years at hard labor in the Florida State Prison. The defendant Hopper appealed.
Counsel for appellant contends that the trial court erred in overruling his motion for a directed verdict at the close of the State's case and, later, in denying defendant's motion for a new trial, on the ground that the verdict and judgment were contrary to law. It is contended that the prosecution, during the progress of the trial and at the time of resting its case, failed to establish by competent evidence the corpus delicti beyond a reasonable doubt. The point is made that the burden of proof under the law rested upon the prosecution to establish, first, the fact of death; second, the criminal agency of another person as the cause thereof; and third, the identity of the deceased person. The case of Lee v. State, 96 Fla. 59, 117 So. 699, is relied upon to sustain the contention.
The record discloses that Kane was hit by an automobile driven by the defendant-appellant at 79th Street near 11th Avenue, N. W., in the City of Miami about 1:30 A. M., January 7, 1950. Kane's body was badly mangled; his right leg was broken in several places, the back of his head was matted with blood which came from the ears, mouth and nose; and the 'head was turned at an angle where you could see it had been crushed through there.' (Tr. 46). The defendant admitted striking the deceased with his automobile and 'I hit him broadside as I swung left.' 'I drank five or six beers.' (Tr. 80). The arresting officer smelled alcohol on the defendant and his speech was slurred. The Kane boy died immediately after being hit by the appellant's automobile. The right headlight of defendant's car was 'smashed out' and the right side of the hood of the car was 'dented'.
We find no hint or suggestion in the record that Kane's death was due to any agency other than being hit by the defendant's automobile, which striking of the deceased, the defendant admitted, occurred after drinking five or six beers. The rule obtaining in Flordia is that when a wound from which death might ensue has been inflicted and thereafter death occurs, the burden of proof is upon the defendant to make it appear that the death did not result from such wound but from some other cause. Bellamy v. State, 56 Fla. 43, 47 So. 868.
It appears by the record that attorney Ives, Assistant Prosecuting Attorney, in his remarks to the jury sworn to try the issues in the lower court, in part, said: 'If there was not evidence sufficient for you to consider, the Judge would have granted the motion for directed verdict for defendant.' Counsel for defendant-appellant moved the trial court for an order declaring a mistrial on the gound that the above argument was improper, prejudicial, and deprived the defendant of a fair and impartial trial. The following occurred:
'The Court: It is up to you gentlemen after having heard all this argument and the testimony from the witness-stand and heard the charge of the Court and retired to your jury-room and having had a full and fair conference with your fellow jurors, to decide whether or not the State has proven to the...
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...The authorities cited by respondent, including Land v. State, Fla., 156 So.2d 8; Coachman v. State, Fla.App., 114 So.2d 189; Hopper v. State, Fla., 54 So.2d 165; Tongay v. State, Fla., 79 So.2d 673; and Bellamy v. State, 56 Fla. 43, 47 So. 868, are distinguishable, as to factual complex, fr......
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...subject see 4 U.Fla.L.Rev. 360 (Fall 1951). See also Porter v. State, Fla., 88 So.2d 924; Hunt v. State, Fla., 87 So.2d 584; Hopper v. State, Fla., 54 So.2d 165; Taylor v. State, Fla., 46 So.2d 725; Touchton v. State, 154 Fla. 547, 18 So.2d 752; Roddenberry v. State, 152 Fla. 197, 11 So.2d ......
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