McDougal v. State, 5757

• Decision Date: 07 January 1966
• Docket Number: No. 5757,5757
• Citation: 181 So.2d 539
• Parties: Freddie Lee McDOUGAL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 539

181 So.2d 539

Freddie Lee McDOUGAL, Appellant, v. STATE of Florida, Appellee.

No. 5757.

District Court of Appeal of Florida, Second District.

Jan. 7, 1966.

Loyd C. Mosley, Clearwater, for appellant .

Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

Appellant (defendant) Freddie Lee McDougal was informed against for the offense of manslaughter, allegedly committed in the driving of an automobile in a culpably negligent manner, resulting in the death of one James Krupp, who was a passenger in another automobile with which defendant's car collided. Upon trial, the jury convicted, and from the judgment of conviction defendant has appealed to this Court. Although numerous grounds were asserted in the Motion for New Trial filed pursuant to the verdict, and also in the Assignments of Error filed here, having to do with procedures at the trial, the sole point argued in this Court and urged here for reversal is the sufficiency of the evidence to sustain the jury's verdict.

The record before this Court discloses a bizarre state of facts. J. P. Lersh, an officer for over 18 years with the City of St. Petersburg Police Department, was engaged in making an official call at 653 Jordan Park, which is in a colored residential section of St. Petersburg. He was in a police vehicle knows as an accident van, painted the green and white colors of the City Police Department, with the City seal on it and with a large red light overhead. With him was James R. Price, another St. Petersburg police officer, and together they were investigating a reported disturbance at the address stated, at about 9 o'clock P.M. on April 15, 1964. At least one or two other police cars were there on the same call, all the vehicles being parked out in front of the residence. Officers Lersh and Price had already been in the house for about five minutes, had come out and had gotten into their police vehicle preparatory to leaving, with officer Lersh in the driver's seat, when a 1960 red Ford convertible, with defendant McDougal driving, drove by at a normal rate of speed. There was no one in the car with defendant, according to both officers. Shortly thereafter, the red Ford came back going westerly in the opposite direction, at which time the officers fell in behind the Ford and started following it. Then followed a most irrational course of driving on the part of defendant; crossing, criss-crossing, zigzagging, weaving and skidding up and down, over and across, numerous of the narrow and irregular streets, avenues, alleys and dirt roads in that part of the city. He accelerated his speed from about 25 to 30 miles an hour, to about 70 to 80 miles per hour, or, as one witness, Mrs. Loretha Yates, who was sitting in a chair on her front lawn near the end of its meanderings, testified, 85 to 90 miles per hour. Defendant never went in a straight line more than a few blocks at a time, mostly turning at every corner or every other corner, completely ignoring cross intersections and even stop streets.

When the officers first fell in behind defendant, he was going west on 13th Avenue. About three quarters of a block away defendant turned south on 25th Street, going one block to 14th Avenue, then turning west on 14th Avenue. The officers were then about five car lengths behind defendant. He drove one block on 14th, then turned north on Yale Street; then proceeded on Yale some six or seven blocks, part of which was only a sand road. The officers estimated Yale Street was 22' wide where paved and only about 17' wide in the sand. Defendant finally turned off Yale east on 9th Avenue, going one block to 25th Street, where he turned north one block to 8th Avenue. The officers by that time were about half a block behind the other car. Defendant then turned east on 8th Avenue, which was a sand street, to 24th Street, where he turned north one block to 7th Avenue, where he turned two blocks west to 26th Street. The officers were by that time about three-quarters of a block behind defendant. The streets in that area were described by the officers as being 'sandy and very rough.' At 26th Street defendant turned south one or two blocks to Harrington Street, where he turned east two blocks to 24th Street. He turned north on 24th Street two blocks to 7th Avenue, turning west at that point one block to 25th Street, turnig south on 25th three blocks to 9th Avenue. He then turned west on 9th Avenue one block to 26th Street. Describing the terrain of these streets the officers testified 'this whole area is sand * * * no paved roads from 9th Avenue * * * all rough.' 26th Street is a paved road and defendant drove straight for eight or nine blocks to 15th Avenue to the point of impact with the car in which deceased was riding, during which eight or nine blocks defendant accelerated his speed from about 35 to 40 miles per hour up to 75 to 90 miles per hour, depending upon the estimates in the sworn testimony of the various witnesses.

During all his driving as related, defendant never stopped or slowed down until the fatal crash, heeding neither dirt roads, rough roads, narrow roads, right angle turns, or stop streets. The first corner defendant turned after the officers started following him, from 13th Avenue into 25th Street, was a stop street for all traffic to stop before entering 25th Street. Thereafter, defendant blandly went on, without stopping or slowing down, into and across the following stop streets: from Yale Street into 9th Avenue, making a right turn; on 25th Street going into 9th Avenue, where he made a right turn; on 9th Avenue, making a right turn into 26th Street; and from 26th Street going into 15th Avenue, where traffic is supposed to stop going into 15th Avenue. This was the point of the fatal collision. For the last approximately eight or nine blocks on 26th Street the officers had attained a speed of from '75 to 80 miles an hour' by their speedometer and the defendant was 'pulling away from us.' At such speed defendant barged into 15th Avenue without stopping, crashing into a Fairlane, which was also a City of St. Petersburg police car, wherein officer James Krupp was riding as a passenger along 15th Avenue. He was killed instantily. The entire 'wild ride' had covered an area of 35 blocks, all within a 30 mile speed zone, during which time defendant had driven into and across stop streets at least five times, all of them displaying red and white stop signs prominently, before entering. Officer Lersh had his 'red lights on' and his siren sounding from shortly after the chase began.

The foregoing are the highlights of the events transpiring on this night of 'travel and travail' leading up to the final scene of carnage. ¹ The case for the State was abundantly put in evidence by the sworn testimony of eleven State witnesses, through 313 pages of testimony, with 46 exhibits being offered and admitted, most of which were enlarged photographs of scenes and streets along which defendant drove, particularly street intersections, showing raised, metal stop signs, etc.

Against such an array of evidence, the defendant was his own sole witness. Defendant McDougal, a 21 year old white man, testified he had gone 'to see a colored boy about a car, and a police cruiser passed us. * * * And I went and turned, and he turned the same way I did, and I cut two or three blocks, and he had cut two or three blocks, and he didn't--just kept on following me. * * * I made several turns, and then turned back and stuff, and I seen he was still following me, he didn't make no effort to stop me or catch me. * * * I tried to turn again, and see if he'd follow me, and he still followed. * * * Then I got scared * * * I started accelerating, I imagine.' He did not recall seeing a single stop sign, did not see any red light on the pursuing vehicle, and didn't hear a siren. He recalled intersections as he made turns, but never looked at his speedometer. Asked about the fatal collision at 26th Street and 15th Avenue, he testified 'I don't never remember getting to that intersection.' Such was the essential portions of the defendant's testimony.

The question before this Court is: Did defendant McDougal operate his Ford convertible on that night in such a culpably negligent manner as to be criminally responsible for the killing of officer Krupp. We think so.

The case of Cannon v. State, 91 Fla. 214, 107 So. 360, has been for the past forty years considered the pilot case in Florida regarding the kind and degree of negligence necessary to sustain a manslaughter conviction in such cases. The trial Court in the Cannon case defined to the jury the requisite negligence to be----

'The omission to do something which a reasonable, prudent, and cautious man would do, or the doing of something which such a man would not do, under the circumstances of a particular case.'

The giving of this charge was held by the Supreme Court to be reversible error for the reason that, while it was a correct definition of simple negligence such degree of negligence could not be the basis for a manslaughter conviction under the culpable negligence statute. It was held that such negligence, to constitute manslaughter, must be such as----

'* * * to authorize the recovery of exemplary or punitive damages, (and that) the negligence complained of must be of 'a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which showed wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.' (Cases cited). This definition of the character of negligence necessary to be shown to authorize the...