Smith v. State
| Decision Date | 19 May 1953 |
| Citation | 65 So.2d 303 |
| Parties | SMITH v. STATE. |
| Court | Florida Supreme Court |
Johnson & Williams and Baker & Thornal, Orlando, for appellant.
Richard W. Ervin, Atty. Gen., and Bart L. Cohen, Asst. Atty. Gen., for appellee.
James E. Smith, appellant (defendant below), was informed against in the Criminal Court of Record of Orange County for the crime of manslaughter. The first count in the information charged that the defendant 'while intoxicated and while under the influence of intoxicating liquor,' did unlawfully drive and operate a motor vehicle against and upon Emma Samuels and Frances Karlin, thereby causing their death. The second count charged that the defendant operated said motor vehicle 'unlawfully and in a culpably negligent manner,' thereby causing the death of the above persons.
The trial resulted in a verdict of acquittal on the first count and a verdict of guilty on the second count, with a recommendation of mercy by the jury. The defendant was adjudged guilty and sentenced to a term of five years in the State Penitentiary. This appeal followed.
The tragic accident, which resulted in the death of Mrs. Samuels and Mrs. Karlin, occurred on a dry, clear night, about 8:30 P. M., on the 13th of February, 1952, on the Cheney Highway (State Road No. 50) just east of the sign marking the east city limits of Orlando and almost directly opposite the office of the Florida Highway Patrol, which was on the south side of the highway. At this point the highway has four lanes and is 42'9"' wide between curbs. At the point of the accident the road has a slag surface, the concrete portion of the highway beginning about 500 feet west (toward Orlando) therefrom. It is clear from the evidence, and undisputed, that there were no houses along the highway in the vicinity of and particularly just easterly from the scene of the accident and that it was in a rural area, and that there were no street lights in the vicinity.
The undisputed evidence shows that just shortly before the accident the two ladies who were killed made a telephone call from the office of the Florida Highway Patrol--that they were dressed in dark clothes. They left the office of the Highway Patrol and proceeded to cross the main highway at a point where there was no cross walk or lights. They were travelling in a slightly northwesterly direction or diagonally away from the car being driven by the defendant in a westerly direction toward Orlando. They were struck at a point 9 to 10 feet from the north side of the road or almost in the middle of the defendant's lawful lane of traffic. The defendant testified that, because of being momentarily blinded by an approaching truck, he did not see the two ladies until he was 30 to 60 feet from them and that when he did see them he tried to swerve his car to the left, but struck them with the right front of the car. After the accident defendant's car travelled 279 feet from the point of impact to where his car came to a stop. The defendant testified that he attempted to apply his brakes but in doing so his car seemed to swerve and go out of control, so he had to gradually bring his car to a stop. This is borne out by the fact that the only skid marks (or tire marks) on the highway were from the right front wheel of the car and this extended for a distance of about 200 feet.
Further undisputed evidence shows that after his car came to a stop the defendant walked back to the scene of the accident, saw what had occurred, talked to the officer momentarily, then returned to where his car had come to a stop near the center of the street, backed the car up to the north edge of the road, parked it with the lights on and then walked back to the scene where the officers were. He was then placed in a patrol car, in the custody of the officers, later given a drunkometer test and released on bail. The officers testified that immediately after the accident the defendant told them that the last he remembered before the accident he was going 60 to 65 miles per hour. They testified that the defendant smelled of alcohol and that he was intoxicated and that when he got out of the car he weaved when he walked.
The verdict of not guilty on the first count of the information eliminated the question of manslaughter arising out of the operation of an automobile while 'intoxicated'. We are, therefore, left with the sole question of whether the facts establish, beyond a reasonable doubt, that the defendant is guilty of manslaughter under the second count--that is--whether the death of Mrs. Samuels and Mrs. Karlin resulted from being struck by the car driven by the defendant in a culpably negligent manner.
'The involuntary killing of a human being is the least heinous of the offenses predicable of homicide.' 26 Am.Jur. 166. Under the common law involuntary manslaughter was defined as the unintentional killing of another by a person engaged at the time in doing an unlawful act not amounting to a felony and not likely or naturally to endanger life, or doing a lawful act in an unlawful manner. It negatives the idea of an intention to cause death and in this respect it is different from the great majority of heinous crimes in which the element of intent--express or implied--is usually an essential ingredient. In this State--as in many others--the Legislature has defined involuntary manslaughter. Our statutes define it as (1) 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 or murder, Section 782.07, F.S.A.; or (2) the death of a humn being caused by the operation of a motor vehicle by any person while intoxicated. Section 860.01, F.S.A. Both definitions--as at common law--exclude the element of intent and, in one case, substitutes 'intoxication' and in another 'culpable negligence' therefor.
In Cannon v. State, 91 Fla. 214, 107 So. 360, 363, we discussed the question of 'culpable negligence' in a trial for manslaughter and there said:
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