Raneri v. State, O-380

• Decision Date: 09 December 1971
• Docket Number: No. O-380,O-380
• Citation: 255 So.2d 291
• Parties: John RANERI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 291

255 So.2d 291

John RANERI, Appellant, v. STATE of Florida, Appellee.

No. O-380.

District Court of Appeal of Florida, First District.

Dec. 9, 1971.

Dan R. Warren, of Judge & Warren, Daytona Beach, for appellant.

Robert L. Shevin, Atty. Gen., and William W. Herring, Asst. Atty. Gen., for appellee.

JOHNSON, Judge.

Appellant was adjudged guilty and sentenced to ten years imprisonment for the offense of third degree murder after a jury trial on charges of second degree murder. As grounds for reversal, appellant contends that his motion for a directed verdict of acquittal made at the close of the State's case should have been granted because the State failed to produce sufficient evidence to submit to the jury to prove each and every element of the offense of second degree murder. We agree.

The transcript of testimony adduced at appellant's trial reveals the following events leading to the fatal stabbing of the deceased. On the afternoon of July 26, 1969, the deceased entered appellant's apartment, occupied by appellant and Gail Sasser, and wanted to buy barbiturates from Gail. Each time she said she didn't have any, the deceased hit her. The appellant was not present on this occasion, but Gail related said events to him later in the day.

That same evening appellant, Gail and two other persons were in appellant's apartment when the deceased and another person entered. There was evidence that the deceased was intoxicated when he entered appellant's apartment. All of a sudden, the deceased went quickly over to the appellant, who was sitting on the bed, and with his fist hit appellant in the eye. Appellant seemed quite surprised and each time he attempted to ask the deceased why he had hit him, he was struck again. Appellant never struck back, but sat on the edge of the bed, his head down and blood dripping from his eye. The deceased then calmed down for a minute and leaned back against a table by the door. At this time, one of the girls present got a washcloth from the bathroom to wipe the blood from appellant's eye. The deceased grabbed the washcloth from the girl's hand and slung it to the floor, whereupon Gail picked it up and the deceased hit her leg as she backed away. Appellant then stood up, walked over to a dresser and picked up a butcher knife lying thereon. He stood about five feet from the deceased and said 'Let's see how good you are with your hands.' The two men then came together and the knife entered the deceased's abdomen, resulting in his death. Gail then called an ambulance. A police officer who arrived at the scene after the stabbing testified that appellant had told him that 'he did not mean to cut Memory as bad as he did. He just meant to cut him a little bit.'

The State contends that the evidence was ample to meet the tests of second and third degree murder since a lull in the fighting took place after the initial onslaught of blows administered by the deceased and before the appellant gained possession of the knife. It is argued that a reasonably cautious and prudent person would not have believed that he or another was in imminent danger of death or great bodily harm.

The appellant brings out the facts that he was in his own apartment, that he did not resist the vicious attack which had continued upon him for about five minutes and that he did not arm himself with the knife until the deceased broadened his attack to include Gail. Under such circumstances, argues appellant, there was no evidence demonstrating that the act of stabbing evinced a depraved mind, an essential element of the offense of second degree murder. As noted above, we agree.

As stated in Stinson...