Phillips v. State, 72--630
| Decision Date | 06 February 1974 |
| Docket Number | No. 72--630,72--630 |
| Parties | Robert L. PHILLIPS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John L. Riley of Riley, Schowe & Saltsman, St. Petersburg, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant was charged with manslaughter in two counts. Count one was predicated on culpable negligence in the operation of a motor vehicle and count two charged operating a motor vehicle while intoxicated. The victim was the same in each count. The trial court, in a non-jury trial, found appellant guilty on both counts and two concurrent sentences were imposed.
It undisputedly appears that appellant owned a Dodge 'Super Bee' automobile which he had 'souped up' with a 383 cubic inch, 425 h.p. engine for purposes of making a dragster out of it which he intended subsequently to race at a drag strip. On the afternoon of the tragedy, he had been drinking with the victim in this case, John Allen Creamer, to whom he was trying to sell the Super Bee. Appellant testified as follows:
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'Q What time did you get to the Midway (a local tavern)?
A Approximately four.
Q And met John?
A Yes, sir.
Q And shot pool and drank some beer?
A Yes, sir.
Q You said your liability insurance was revoked because--why was your liability insurance revoked?
A Well, I had liability on my truck and Volkswagon, but on the Super Bee, that's why I was trying to sell it, had too much horsepower. That was the letter I got back from the people. They didn't really revoke it, just said they would not cover it because it was a four-speed car and all souped up and everything.
Q That is the only reason they give for revoking your insurance?
A Yes, sir. On the insurance policy it was wrote down as a 318 engine. They didn't ask the size, but it was a 383 and 425 horsepower.
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Q You can remember the conversation you had with John, can't you?
A Yes, sir. He asked what it would do in a quarter, how fast it would run, because I spend a lot of time out as Sunshine Drag Strip, and I was familiar with race cars and so forth. That's one of the reasons I had the car souped up, we were going to race it at the drag strip.
Q You've been to the drag strip a lot and seen a lot of races?
A Quite a bit, yes, sir.
Q You've seen races when it's been kind of wet or damp or raining?
A Only the stock car races. If it just drizzles, they run stock cars. They won't run the drags, no, sir.
A That car won't stay under control, looses (sic) control.
Q What is your car? What is (it) considered? Stock car, dragster, or racer?
A It was approaching a dragster, had a lot horsepower. It still had the facilities to stay on the street. It wasn't taken off the streets yet.
Q Close to it though, right?
A Yes, sir. It was approaching. That's one reason I wanted to get rid of it.
Q So you weren't (sic) talking about how fast it would go and the purpose to go in the car was to demonstrate it?
A We was going to demonstrate it, yes, sir. It wasn't raining when we left there, though.'
Appellant further testified that he and Creamer left the bar and were proceeding to an appropriate place of demonstration, but he cannot recall clearly any significant details thereafter. Other witnesses testified, however, that a drizzling rain had begun and that the streets had become slippery. One witness testified that he noticed the Super Bee approaching him from the opposite direction at approximately 40--45 m.p.h. (the speed limit was 40), that as it passed him he heard the engine suddenly rev up and that he looked into his rear view mirror and saw the Super Bee go out of control. It was also established that the car shot across the center line, struck the side of another oncoming car and then, passenger side to, slid broadside into an oncoming truck. Creamer, who was found strapped in the passenger seat by a seat belt and shoulder harness, subsequently died of injuries sustained. Considering these facts most strongly against appellant, as we must do in the present posture of the case, we affirm as to count one.
Clearly, the...
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