Lemming v. State, 3957

• Decision Date: 10 January 1964
• Docket Number: No. 3957,3957
• Citation: 159 So.2d 486
• Parties: Jesse Otto LEMMING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 486

159 So.2d 486

Jesse Otto LEMMING, Appellant, v. STATE of Florida, Appellee.

No. 3957.

District Court of Appeal of Florida, Second District.

Jan. 10, 1964.

Alex D. Finch, of Finch & Mosley, Clearwater, for appellant.

Richard W. Ervin, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

SHANNON, Judge.

The appellant was convicted and sentenced upon an information in two counts charging: 1) that he did cause a death by culpable negligence in the operation of an automobile; and 2) that he committed manslaughter in the operation of a motor vehicle while he was intoxicated.

The facts in this case are fairly simple. The record shows that one Frederick Paul Robair arrived at the east end of the Belleair Causeway in Pinellas County at approximately 6:40 or 6:45 P.M., and then started to wald across the causeway in a westerly direction. Just prior to 7:00 P.M. he was found dead on the west end, lying about five feet off the northern edge of the causeway. He had been the victim of a hit and run driver.

The defendant-appellant had had his car repaired that same afternoon, and had picked it up at about 5:00 P.M. He was at that time apparently under the influence of intoxicants. The toll collector on the Belleair Causeway testified that soon after Robair had started to walk across the causeway, a person drove up to the tollhouse going in a westerly direction in an older model light blue automobile. The driver had such difficulty in handling the toll charges that it was apparent that he was intoxicated. The toll collector testified that the car proceeded westerly across the causeway, but that it returned some ten or twelve minutes later, heading east, and was 'making an unnecessary noise and had a dent in the hood. The hood was aprung.' The collector said that the driver again had trouble handling his money, and in his words--'his fingers did not seem to work very good' and he 'kept dropping it in his lap.' He further testified that later that evening he saw the vehicle at a garage and recognized it as belonging to the defendant.

At approximately seven o'clock that evening, i. e., shortly after the return trup over the causeway, the defendant was arrested by a highway patrolman for driving while intoxicated. The officer testified as to the various tests that he had made on the defendant, and also as to the damage to the car. In checking eith headquarters relative to the damaged condition of the car, the officer learned of the death of Robair, the scene of which was some three of four miles distant. The testimony relative to the defendant's sobriety, and the testimony relative to the car damage (which was idenrified by the FBI as being defendant's) went to the jury, and it was more than sufficient to show the intoxication of the defendant, as well the fact that the dead man was struck by the defendant.

On his appeal the defendant has posed four points. Two of these points will be considered in this opinion; the other two show no reversivle error.

In point two the appellant questions the sufficiency of the evidence to show that at the time of the accident he eas guilty of culpable negligence. We must rule for the appellant on this issue, as we find indufficient evidence to sustain the charge. Notwithstanding that the jury found that appellant was drunk at the time of the homicide, and that the car he was driving did strike the deceased, we are nevertheless shown no facts from which he could be deemed guilty of culpable negligence. The record bears out the fact that the death was caused by defendant's car, but by what means or in what manner, it is impossible to state--possibly the deceased was struck in the roadway, or conceivably he could have stepped out in front of the car, or it could have been a multitude of things, none of which could possibly have constituted culpable negligence.

In Jackaon v. State, Fla.App.1958, 100 So.2d 839, the defendant was charged with causing the death of a person as a result of culpable negligence in the operation of an automobile, and secondly, causing the same death as a result of driving while intoxicated. The jury found the defendant guilty of the offense charged in the first count, and acquitted him of the offense charged in the second count. Hudge Wigginton, reversing for the First District, stated, in part:

'When viewed in a light most favorable to the State's position, the only credible evidence tending to establish culpable negligence may be summarized as proving that at the time of the initial collision defendant was (1) travelling at approximately 60 miles per hour; (2) under the influence of alcohol at least to some degree; and (3) across the center line on the wrong side of the road.'

In the Jackson case there was testimony to support the statements of fact as shown by the opinion, yet the court reversed. In the instant case, other than the fact of the appellant's intoxication we do not have any evidence, either direct or circumstantial, proving, or tending to prove, any acts which could be found by the jury to constitute culpable...