Manuel v. State
| Decision Date | 27 April 1977 |
| Docket Number | No. 76--1493,76--1493 |
| Citation | 344 So.2d 1317 |
| Parties | William MANUEL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted of second degree murder. We reverse and remand for the imposition of a sentence of manslaughter for reasons hereinafter stated.
On the night of March 26, 1976, Robert Jackson, 10 was playing with Wendell Elliott, 13, in the vicinity of Janie Mae Hayes' house. The house fronted on Ohio Street in Lake Wales. The boys were playing 'chase'--a game which rewards silence and stealth. They were playing so quietly and the night was so dark that a woman sitting on a nearby porch was unaware of their presence.
Earlier that night, Louise Manuel, wife of the appellant, had come to Ms. Hayes' house and accused a lodger, Ella Mae Kindrick, of having an affair with her husband. An argument ensued, after which Mrs. Manuel left the area.
The appellant was in a bar when he heard that his wife had been involved in a tiff. He obtained his .32 caliber pistol and began walking down Ohio Street toward the Hayes house. Upon reaching the area in front of the Dunlap house--two doors from the Hayes house--Manuel stopped walking when he saw Ella Mae Kindrick on the Dunlap front porch. He said to her, 'Who's doing this to my wife?' . . . 'Who's that messing with my wife?' He then fired a single shot into the ground.
After firing the first shot, Manuel proceeded to a lightpost (the light was broken) in front of the house between the Dunlap and Hayes houses. At this point, Wendell Elliott, having heard the shot, ran from the rear of the Hayes house to a point about three feet from Manuel. Once there, Wendell called for Robert, but received no answer. The record contains no indication that Wendell attempted to warn Manuel that Robert was in the area.
About three minutes after firing the first shot, Manuel first another shot. According to Ms. Kindrick, from her vantage point on the Dunlap porch she could not tell exactly in which direction Manuel had pointed the pistol when he fired the second shot. On direct examination, Wendell Elliott testified that he could not tell at what, if anything, Manuel was aiming. On cross-examination, however, Wendell testified that the gun was pointed in the general direction of an area on the far side of Ms. Hayes' front yard where a trash barrel and other garbage containers were located. Nothing in his testimony indicated he could actually see the trash barrel and other garbage containers. Nothing in his testimony indicated he knew where Robert Jackson was at the time the second shot was fired.
The deputy sheriff who took Manuel into custody testified that Manuel asked about Jackson's condition and stated that he had not intended to hit the boy and was sorry about it. According to this deputy, Manuel did not indicate whether or not he knew the boy was in the area, but did say that 'he knew he hit the boy when he shot' and that 'the boy got in the way.'
The testimony was uncontradicted that Ohio Street was very badly lit, especially in the area where the boys were playing. A police photographer who arrived soon after the shooting testified that one could not see where to walk without a flashlight.
The record is somewhat sparse with regard to Manuel's mental state. The deputy who took Manuel into custody testified that Manuel stated that 'he had got his pistol to try to protect his wife, stop the fight, keep anybody from hurting her.'
The statute governing murder in the second degree, Section 782.04(2), Florida Statutes, provides in relevant part:
The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree . . ..
The Florida Standard Jury Instruction for murder in the second degree provides as follows:
An act is one imminently dangerous to another and evincing a depraved mind regardless of human life if it is an act (or a series of acts) which
1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another;
2. Is done from ill will, hatred, spite or an evil intent, and
3. Is of such a nature that the act itself indicates an indifference to human life.
Number 2 above amounts to what is frequently termed malice. The depravity of mind required in second degree murder has been equated with malice in the commonly understood sense of ill will, hatred, spite or evil intent. Ramsey v. State, 114 Fla. 766, 154 So. 855, 856 (1934); See Huntley v. State, 66 So.2d 504, 507 (Fla.1953); Turner v. State, 298 So.2d 559, 560 (Fla.3d DCA 1974); Bega v. State, 100 So.2d 455, 457 (Fla.2d DCA 1958). 1
Within the category of second degree murder there exist varying gradations of cases. The reason for this is that some acts are simply more depraved than others. For example, in Weaver v. State, 220 So.2d 53 (Fla.2d DCA 1969) the court found the evidence to overwhelmingly support a finding of malice. In Weaver, the victim was a police officer. He was responding to the scene of a domestic dispute at the Weaver household. When Weaver resisted the officer's illegal attempt to enter his home, the officer maced Weaver. Weaver then disarmed the police officer, pursued him, ignored the officer's pleas for mercy, expended all the bullets in his gun in shooting the officer in the back and made an immediate Res gestae esclamation acknowledging the killing. The court found these facts furnished more than a sufficient basis for a finding of the requisite depravity of mind. See Luke v. State, 204 So.2d 359 (Fla.4th DCA 1967).
Another 'strong' case is that of Grissom v. State, 237 So.2d 57 (Fla.3d DCA 1970). In Grissom, the defendant, a junior high school student, was disciplined by a teacher for a rule violation. Upon being disciplined, the defendant threatened to return and kill the teacher. A short time later he did return armed with a handgun and fired two shots at the teacher, wounding but not killing him. While fleeing the building after shooting the teacher, he fired one shot up a stairway in the school building. That shot struck and killed a student standing on the stairs.
Second degree murder convictions were also upheld in cases involving the pointing of a weapon at a vital area of the body before the weapon discharged. In Edwards v. State, 302 So.2d 479 (Fla.3d DCA 1974) the court found that the act of the defendant in pointing his gun at the victim's head, waiting until the victim had taken three steps backward, and then firing the gun, to be both depraved and imminently danagerous. See State v. Bryan, 287 So.2d 73 (Fla.1973).
In Hines v. State, 227 So.2d 334 (Fla.1st DCA 1969), the defendant had pointed a shotgun at the head of the deceased. The defendant stated that he 'had a gun' and that she (the deceased) 'should go out . . . and act like a squirrel and if he killed her . . . it wouldn't be no accident.' The gun discharged striking the deceased in the face and killing her. The court found that even if it accepted the defendant's contention that the gun had fired upon closing the breach that such an act committed while a gun is purposely pointed at the head of another from a very short distance certainly implied malice.
The instant case contrasts with the 'pointed gun' cases in that Manuel pointed his gun in a direction (toward the garbage area) where one would think a shot could not result in harm to any person. In addition, the lack of any substantial evidence of malevolence directed toward any person strongly suggests to this court that Manuel's conduct, while certainly culpable and inexcusable, falls far short of malice.
The statute governing manslaughter, Section 782.07, Florida Statutes provides in relevant part:
The killing of a human being by the . . . culpable negligence of another, without lawful justification . . . shall be deemed manslaughter.
The Florida Standard Jury Instruction for manslaughter defines culpable negligence as follows:
Culpable negligence is...
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