Jacobs v. State, G-356

• Decision Date: 05 April 1966
• Docket Number: No. G-356,G-356
• Citation: 184 So.2d 711
• Parties: M. T. Connell JACOBS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 711

184 So.2d 711

M. T. Connell JACOBS, Appellant, v. STATE of Florida, Appellee.

No. G-356.

District Court of Appeal of Florida, First District.

April 5, 1966.

James J. Caruso and Carl F. Crossley, Sp. Assts. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and John S. Burton, Asst. Atty. Gen., for appellee.

WIGGINTON, Judge.

Appellant was charged in an information with the offense of manslaughter by having caused the death of one William Owen Buck through the culpably negligent operation of a motor vehicle. The trial resulted in a verdict of guilty by a jury for which appellant was sentenced to a term of ten years imprisonment in the state prison, the sentence being suspended and appellant placed on probation. It is from the judgment of conviction and sentence that this appeal is taken.

Appellant's primary contention is that the State failed to adduce any evidence proving or tending to prove the charge against him as alleged in the information. Because of this, he contends the trial judge committed error in denying his motion for directed verdict made at the close of the State's evidence, and at the conclusion of the trial.

The information which forms the basis of this prosecution charges that appellant did unlawfully by and through his own act, procurement and culpable negligence operate a Chevrolet motor vehicle in such a negligent, careless, and reckless manner as to cause a collision between two certain other motor vehicles, to wit, a 1950 Chevrolet and a 1956 Buick, which collision caused and inflicted certain mortal wounds and injuries on the body of William Owen Buck who was the occupant of the 1950 Chevrolet automobile, and from which mortal wounds William Owen Buck died.

From the foregoing it affirmatively appears without serious dispute that appellant was charged as a principal in the first degree with having committed the criminal offense of manslaughter against the State. It is equally clear that appellant was not charged with having aided, abetted, counseled, hired, or otherwise procured such offense to be committed, as proscribed by statute. ¹

The facts are not in dispute. On the critical date appellant, together with several others, engaged in a discussion regarding the relative speed of the automobiles owned by some of them. It was agreed that the Buick owned by Kinchen, one of the participants, was the fastest of the group, but a race would be necessary in order to determine whether the Ford owned by one Carter was faster than the Chevrolet owned by appellant. The group proceeded to an agreed starting point on State Road 40, a two-lane highway west of Ocala. Appellant's Chevrolet had a broken piston and Carter's Ford had a defective low gear. Because of the condition of Carter's Ford, he was given a head start in the race. Kinchen with the faster car was to go ahead of the two other two and judge the winner, but at the last minute changed his mind and started last. Appellant, who left the starting line behind Carter, overtook the latter while traveling at a medium speed of about fifty-five miles an hour. All three vehicles proceeded in a westerly direction along the highway. A witness, Sands, driving along the highway in an easterly direction arrived at the crest of the hill and observed all three vehicles approaching in their correct right lane and traveling at an excessive speed. Sands saw Kinchen's Buick pull out into his left lane in order to pass the middle vehicle, and when he did Sands drove his car off the highway on to the right shoulder of the road. Another witness standing alongside the highway saw appellant's car proceeding westerly at an estimated speed of between fifty and seventy miles an hour. At the same time he observed a vehicle driven by one Buck traveling in an easterly direction at a speed of approximately twenty-five to forty miles an hour. As the Buck vehicle reached the crest of the hill, he met the two vehicles driven by Kinchen and Carter approaching him side by side traveling at an estimated speed of ninety miles an hour. The vehicle driven by Buck proceeding easterly in the south traffic lane met head-on the vehicle driven by Kinchen in a westerly direction which was also in the south traffic lane, resulting in the death of both drivers. At the time of the collision appellant was a quarter of a mile down the road ahead of the vehicles which were following him.

Under the foregoing factual situation appellant contends that the State failed to prove by any competent evidence that, as alleged in the information, he operated his vehicle in such a culpably negligent manner as to cause the collision which occurred between the vehicles operated by Kinchen and Buck. Appellant urges that the sole proximate cause of the collision was the culpable negligence of Kinchen over which appellant had no control, and for which he was not responsible. Appellant therefore concludes that the probata fails to conform to the allegata, and the court erred when it refused to direct a verdict in his favor.

Appellant concedes that the hereinabove-quoted statute which defines 'principal in the first degree' (§ 776.011, F.S.A.) makes one who aids, abets, counsels, hires, or otherwise procures the commission of a criminal offense equally guilty with the person who actually perpetrates the crime. Appellant reasons, however, that if it had been the State's intention to charge him merely with having aided, abetted, counseled, or otherwise procured Kinchen in the culpably negligent operation of his motor vehicle which resulted in the death of William Owen Buck, the duty rested upon the State to so charge appellant in the information filed against him. The State having charged appellant with the substantive offense of which the evidence shows only Kinchen to be guilty, appellant contends that he could not legally be found guilty of the act of aiding and abetting for which he was not charged in the information. In support of this position appellant cites the general rule to the effect that a defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information, and cannot be prosecuted for one offense and convicted and sentenced for another, even though the offenses are of the same general character or carry with them the same penalty. ²

In the early case of Albritton v. State, ³ the indictment charged Andrew Albritton with the larceny of a cow, and Henry Albritton with having been feloniously present and aiding, abetting, counseling, and procuring curing the commission of the crime. The trial court charged the jury that if they found from the evidence that Henry Albritton stole the cow, they could find him guilty as charged, and that if they found Andrew Albritton was present and aiding and abetting Henry Albritton in the larceny of the cow, they could find Andrew Albritton guilty as charged. Each defendant was found guilty and sentenced, whereupon Henry Albritton appealed contending that since he was charged only with aiding and abetting in the procurement of the crime, and the court erred in charging the jury that they could find him guilty if the evidence established that he actually stole the cow. In rejecting this contention, and affirming the judgment of conviction and sentence, the Supreme Court said:

'* * * Under the indictment before us, charging Andrew Albritton with the commission of the felony, and Henry Albritton as being present, aiding abetting, and procuring the commission of the offense, both of them could have been convicted on a state of facts showing that Henry committed the offense, and Andrew was present, aiding, abetting, and procuring the commission thereof. The offense charged against all of them is the same. * * * Under this indictment, * * * the named defendants are indicted as principals,--Andrew in the first degree, and Henry * * * in the second degree. * * * The punishment prescribed for principals in the first and second degrees is the same under our law.'

From the foregoing decision it appears to be the law of this State that one may be charged in an information or indictment with aiding, abetting, or procuring the commission of a criminal offense, but if the proof establishes that he actually committed the offense, a verdict finding him guilty as charged will be sustained. Conversely, it would follow that if an information, such as the one filed in the case sub judice, charges a defendant with the commission of a criminal offense, and the proof establishes only that he was feloniously present, aiding, and abetting in the commission of the crime, a verdict of guilty as charged should be sustained.

In the later case of Green v. State ⁴ an indictment charged one Jake Blue with having murdered one G. M. Fletcher by shooting him with a pistol. The indictment further charged appellant, Israel Green, and five other individuals with having been feloniously present, aiding, and abetting Jake Blue in the commission of the crime. Green was tried separately from the other defendants, was convicted of murder in the first degree, and sentenced to death in the electric chair. In considering the points made by Green on appeal, the Supreme Court said:

'* * * The indictment in this case charged each and all of the defendants with murder in the first degree. Jake Blue was charged as principal of the first degree, and the defendant and five others as principals of the second degree, in this crime. 1 Bish.New Cr.Law, § 648. Although the indictment charged that Blue fired the fatal shot, the defendant could be properly convicted upon proof that he fired it, or that it was fired by either of the other defendants while he was present, aiding and abetting the act; provided, of course, the homicide amounted to murder in the first degree. Bryan v. State, 19 Fla. 864; Albritton v. State, 32 Fla. 358, 13 South. 955. And the acquittal or conviction of Blue or any other defendant, or their conviction of a lesser...