J.C.D., In Interest of, 91-2795

• Decision Date: 20 May 1992
• Docket Number: No. 91-2795,91-2795
• Citation: 598 So.2d 304
• Parties: In the Interest of J.C.D., a minor child. 598 So.2d 304, 17 Fla. L. Week. D1284
• Court: Florida District Court of Appeals

Page 304

598 So.2d 304

In the Interest of J.C.D., a minor child.

No. 91-2795.

598 So.2d 304, 17 Fla. L. Week. D1284

District Court of Appeal of Florida Fourth District.

May 20, 1992.

Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We agree with appellant that the evidence was insufficient to sustain a finding of culpable negligence on his part in the tragic death of his young friend. The appellant's version of the tragic incident was corroborated by the testimony of the only other witness to the incident. Their versions of the incident were virtually identical. The proof is uncontradicted that the appellant, and the eyewitness, believed in good faith that the gun involved was unloaded. In addition, appellant's claim that he accidently engaged the trigger of the weapon was not contradicted by any other evidence presented at trial.

This case is tragically similar to a recent case in the Third District where the court held:

Without ... an extensive recitation of the facts surrounding the fatal shooting, suffice it to say that the totality of the evidence in this case establishes that J.A. accidentally shot and killed his friend while carelessly handling a loaded rifle in the deceased's presence. It is clear that the rifle slipped from J.A.'s hands and, as J.A. grabbed for it, he accidentally hit the trigger and tragically shot and killed his friend. At the time, J.A. was not engaged in an argument or physical combat with the deceased or anyone else; there was not the slightest bit of animosity between J.A. and the deceased as, indeed, the two were friends, and J.A. was extremely remorseful after the incident; moreover, J.A. was not under the influence of drugs or alcohol. Under these circumstances, Florida courts have consistently held that such an accidental firearm discharge may be the product of simple or gross negligence by the accused, but cannot rise to the level of culpable negligence so as to constitute a criminal manslaughter. See Dominique [v. State, 435 So.2d 974 (Fla. 3d DCA 1983) ] (evidence insufficient to establish manslaughter where gun discharged and bullet struck defendant's friend as a result of someone grabbing the defendant's arm); Parker v. State, 318 So.2d 502 (Fla. 1st DCA 1975) (evidence insufficient to support manslaughter conviction where defendant partially cocked gun and waved it around cousin's head and it inadvertently discharged), cert. denied, 330 So.2d 21 (Fla.1976); Getsie v. State, 193 So.2d 679 (Fla. 4th DCA 1966) (evidence insufficient to establish manslaughter where husband was slowly releasing hammer of loaded gun as he sat down on wife's lap and gun discharged, killing her), cert. denied, 201 So.2d 464 (Fla.1967); Sharp v. State, 120 So.2d 206 (Fla. 2d DCA 1960) (evidence...