Russ v. State

• Decision Date: 06 October 1939
• Citation: 140 Fla. 217,191 So. 296
• Parties: RUSS v. STATE.
• Court: Florida Supreme Court

191 So. 296

140 Fla. 217

RUSS v. STATE.

Florida Supreme Court, Division B.

October 6, 1939

Error to Circuit Court, Jackson County; E. C. Welch, Judge.

Amon H Russ was convicted of manslaughter, and he brings error.

Reversed and new trial awarded.

COUNSEL

B. L. Solomon and Carter & Pierce, all of Marianna for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for the State.

OPINION

CHAPMAN Justice.

Plaintiff in error, Amon H. Russ, was informed against by the State Attorney of Jackson County, Florida, for the crime of manslaughter. The information alleged that he negligently operated an automobile so as to collide with Gussie M. Wells and thereby inflicting upon her a mortal wound. The defendant entered a plea of not guilty upon arraignment and a jury was called and the issues submitted under appropriate instructions from the trial court, but the jury was unable to agree upon a verdict and a mistrial was declared.

The issues, at a subsequent date, were submitted to a second jury who, after hearing all the evidence, argument of counsel and charge of the court upon the law of the case, returned a verdict of guilty as charged in the information. The trial court overruled and denied defendant's motion for a new trial and sentenced the defendant to serve a period of three years at hard labor in the State Prison. Writ of error was taken and the case is here for review solely upon the question of the sufficiency of the evidence to sustain the verdict.

The information was drafted under Section 7141, C.G.L., viz:

'The killing of a human being by the act, procurement, or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder, according to the provisions of this Article, shall be deemed manslaughter, and shall be punished by imprisonment in the State prison not exceeding twenty years, or imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars.'

The killing of a human being by culpable negligence by the statute, supra, is made manslaughter. Culpable negligence is 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 surrounding the particular case. Negligence is the failure to observe for the protection of another's interest such care, precaution and vigilance as the circumstances justly demand whereby injury is done to such a person, or, in another form, negligence is the failure to do what a reasonable and prudent person would ordinarily have done, or the doing of what such a person would have done under the situation whereby injury is done to another. See Franklin v. State, 120 Fal. 686, 163 So. 55. The burden of proving culpable negligence rests upon the State of Florida like any other material allegation of an indictment. See Pitts v. State, 132 Fla. 812, 182 So. 234.

This Court is committed to the rule that the degree of negligence required to sustain imprisonment should be at least as high as that required for the imposition of punitive damages in a civil action. The burden of proof authorizing a recovery of exemplary or punitive damages by a plaintiff for negligence must show a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or 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. See Cannon v. State, 91 Fla. 214, 107 So. 360; Shaw v. State, 88 Fla. 320, 102 So. 550; Kent v. State, 53 Fla. 51, 43 So. 773; Florida East Coast R. Co. v. Hayes, 65 Fla. 1, 60 So. 792.

This Court adopted the rule, viz: that the character of negligence authorizing punitive damages is the same as the character of negligence required to be shown by the State in order to sustain a conviction under Section 7141, C. G. L., as to criminal liability. See Cannon v. State, supra; Austin v. State, 101 Fla. 990, 132 So. 491.

The deceased, with her husband, for many years lived adjoining and on the north side of highway #1 east of Marianna, but within the incorporate limits of the city. Heavy traffic passed continuously over the highway and no obstruction of the view of the highway existed so as to prevent a person from seeing the approach of cars from the west at the point where deceased lived. On the south side of the highway opposite but some distance east of the home of the deceased a Mr. Stewart maintained a grocery store. The deceased, about dusk or a little after on the evening of April 11, 1938, left her home on the north side of the highway for the purpose of getting some milk at the Stewart store to be used in connection with the evening meal. She was 58 years of age and weighed about 150 pounds, of stocky build, and had a habit of walking fast when attending to her household duties. When engaged in crossing the highway she was struck by the car driven by the defendant while traveling east on the highway. Her body was found lying on the center mark of the highway. Her skull was broken above the right ear and the break extended forward to include her forehead and right eye. She had wounds and bruises on her right arm and lower right limb, and all the wounds inflicted were on the right side of her body, and death was instantaneous. The car had attached thereto a spot light fastened on the windshield and was between four and...