Rodriguez v. State

• Decision Date: 22 December 1983
• Docket Number: No. 82-1373,82-1373
• Citation: 443 So.2d 286
• Parties: Julian A. RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 286

443 So.2d 286

Julian A. RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.

No. 82-1373.

District Court of Appeal of Florida Third District.

Dec. 22, 1983.

Bennett H. Brummer, Public Defender, Scherman & Zelonker and Regina F. Zelonker, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

Rodriguez, charged with attempted first-degree murder and convicted of attempted second-degree murder, contends in this appeal that the trial court erred in denying his request to charge the jury on attempted manslaughter, the effect of which, says Rodriguez, was to deprive him of a potential jury pardon.

The questions before us are whether attempted manslaughter is an offense under Florida law; if so, whether the failure to instruct thereon upon the defendant's request was error; and, if so, whether the error can be considered harmless in light of the jury having been instructed on aggravated assault. For the reasons which follow, we reverse the defendant's conviction upon a holding that (1) attempted manslaughter is a crime in Florida, at least under circumstances where, as here, the facts will support a reasonable inference that the manslaughter attempted would have been a voluntary manslaughter at common law ¹; (2) the trial court's refusal to instruct the jury on attempted manslaughter, a lesser degree of the crime of attempted second-degree murder for which he was convicted, was error; and (3) such error was not rendered harmless by the jury having been instructed on aggravated assault.

I.

Manslaughter, in general, ² is defined in Section 782.07, Florida Statutes (1981), as:

"The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of Chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree ...."

The underlying assumption of the Florida cases which have thus far directly or indirectly addressed the question of whether there is a crime of attempted manslaughter in Florida has been that the manslaughter statute deals solely with unintentional killings, that is, those which are effected by the culpable negligence of the defendant. This assumption has inevitably led to the uniform conclusion that it is paradoxical to say that a person may attempt (act voluntarily and intentionally) to commit manslaughter (act involuntarily and unintentionally). See Lassiter v. State, 98 Fla. 370, 373, 123 So. 735 (1929) (Brown, J., dissenting); Taylor v. State, 401 So.2d 812, 816 (Fla. 5th DCA 1981) (Dauksch, C.J., concurring and dissenting); Robinson v. State, 338 So.2d 1309, 1311 n. 1 (Fla. 4th DCA 1976). But despite recognizing the illogic of this conclusion, the two Florida courts which to date have directly addressed the question of whether there exists the crime of attempted manslaughter have been persuaded that such a crime exists based on long-standing Florida precedent holding that the analogous and, to them, equally illogical, crime of assault with intent to commit manslaughter exists. Brown v. State, 431 So.2d 247 (Fla. 1st DCA 1983); Taylor v. State, 401 So.2d 812. See also Tillman v. State, 440 So.2d 666 (Fla. 1st DCA 1983). Thus, in Taylor, adopted in Brown, and most recently followed in Tillman, ³ the court reasoned:

"[I]f we start with the premise that there can be an assault with intent to commit the same [involuntary] act (manslaughter), then it must follow that there can be an attempt (the formation of an intent) to commit the crime, when the other elements of attempt are present. Thus precedent, if not logic, requires that we hold that there is a crime of attempted manslaughter in Florida." 401 So.2d at 816 (emphasis in original).

We agree with the conclusion in Taylor, Brown and Tillman that there is a crime of attempted manslaughter in Florida; however, because we do not accept the underlying assumption that the manslaughter statute is restricted to unintentional killings, we find no logical absurdity in this conclusion in a factual setting where, as here, the manslaughter attempted would have been a voluntary manslaughter at common law.

II.

Although one cannot attempt to do an unintentional act, Williams v. State, 41 Fla. 295, 26 So. 184 (1899); but see Gentry v. State, 437 So.2d 1097 (Fla.1983), manslaughter embraces both intentional (voluntary) killings, ⁴see W. LaFave & A. Scott, Criminal Law §§ 75-77 (1972); 2 C. Torcia, Wharton's Criminal Law §§ 153-165 (14th ed. 1979); R. Perkins, Perkins On Criminal Law 51 (2d ed. 1969), and unintentional (involuntary) killings, see W. LaFave & A. Scott, supra, §§ 78-79, at 586; 2 C. Torcia, supra, §§ 166-172, at 263; R. Perkins, supra, at 70.

Among the intentional killings recognized at common law as voluntary manslaughter were those committed (1) in the heat of passion, Forehand v. State, 126 Fla. 464, 470, 171 So. 241, 243 (1936) (a heat of passion killing is one arising from adequate provocation, that is, provocation "calculated to excite such anger as might obscure the reason or dominate the volition of an ordinary reasonable man"); Disney v. State, 72 Fla. 492, 502, 73 So. 598, 601 (1916) (when the mind operates in the heat of passion, "pre-meditation is supposed to be impossible, and depravity which characterizes murder in the second degree absent"); Olds v. State, 44 Fla. 452, 461, 33 So. 296, 299 (1902) ("A killing in sudden passion, excited by sufficient provocation, is manslaughter, not because the law supposes that this passion made ... (the slayer) unconscious of what he was about to do, and stripped the act of an intent to commit it, but because it presumes that passion disturbed the sway of reason, and made him regardless of her admonitions"); see Collins v. State, 88 Fla. 578, 102 So. 880 (1925); Pridgeon v. State, 425 So.2d 8 (Fla. 1st DCA), rev. denied, 421 So.2d 68 (1982) ⁵; (2) in mutual combat, Eiland v. State, 112 So.2d 415, 419 (Fla. 2d DCA 1959) ("[M]utual combat is predicated upon the proposition that both parties involved are at fault, neither being the aggressor more than the other, and if in such combat one slays the other, such killing is manslaughter."); see Disney v. State, 73 So. 598; Holland v. State, 12 Fla. 117 (1867-68) ⁶; (3) by the use of excessive force to defend oneself, Roberts v. State, 425 So.2d 70 (Fla. 2d DCA 1982), rev. denied, 434 So.2d 888 (Fla.1983); Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 640 (Fla.1980); see Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1125 (Fla.1979); (4) by the use of excessive force to resist an unlawful arrest, Alday v. State, 57 So.2d 333 (Fla.1952); Roberson v. State, 43 Fla. 156, 29 So. 535 (1901); and (5) with neither premeditation nor depravity, Cook v. State, 46 Fla. 20, 35 So. 665 (1903); accord, Lindsey v. State, 53 Fla. 56, 43 So. 87 (1907) (same rule in case of assault with intent to commit second-degree murder or manslaughter); see also Manuel v. State, 344 So.2d 1317 (Fla. 2d DCA 1977), cert. dismissed, 355 So.2d 515 (Fla.1978). ⁷ Just as an intentional killing may constitute manslaughter, an unintentional killing, as for example, where the killing is brought about by the culpable negligence of the defendant, may constitute manslaughter. Bess v. State, 146 Fla. 562, 1 So.2d 580 (1941); Gainer v. State, 100 Fla. 164, 129 So. 576 (1930); Folks v. State, 85 Fla. 238, 95 So. 619 (1923); Kent v. State, 53 Fla. 51, 43 So. 773 (1907).

III.

Although the common-law crime of manslaughter was codified by statute in 1868 its definition as the "killing of a human being, by the act, procurement, or culpable negligence of another," which is neither excusable or justifiable, nor otherwise condemned as murder, has remained unchanged since 1892. ⁸ Since that time, the quoted statutory language has been construed as embracing both voluntary and involuntary manslaughter, a construction which first led the courts to the perfectly logical conclusion that there is such an offense as assault with intent to commit manslaughter.

In Williams v. State, 41 Fla. 295, 26 So. 184, the defendant was found guilty of assault with intent to commit manslaughter. Claiming that there was no such crime, the defendant moved for arrest of judgment, and thereafter appealed the denial of his motion. The Florida Supreme Court affirmed, holding that since manslaughter included intentional killings, the crime of assault with intent to commit manslaughter does exist:

"[I]t must be found that the accused committed the assault with intent to take life, for although an unintentional or involuntary killing may in some cases be unlawful, and a felony, no man can intentionally do an unintentional act; and without the intent the assault cannot be punished under this statute, even though the killing, had it been committed, would have amounted to a felony....

....

"It will readily be perceived by an analysis of the language of [the homicide statute] that there is nothing to exclude from its provisions all intentional homicides, or to include within the definition of murder all intentional killings, unless the intention is so deliberate as to amount to a premeditated design.

....

"[T]here is nothing in our statute which implies that the intent to take life must be deliberate or premeditated...." 41 Fla. at 298-300, 26 So. at 185-86.

See also Grantham v. State, 139 Fla. 129, 132, 190 So. 495, 496 (1939) ("The intent [to take the life of the victim of the assault] must be proven to justify conviction of assault with intent to commit manslaughter."); Bryan v. State, 45 Fla. 8, 34 So. 243 (1903); Knight v. State, 44 Fla. 94, 32 So. 110 (1902); McNeal v. Culver, 365 U.S....