Tipton v. State

• Citation: 97 So.2d 277
• Parties: John H. TIPTON and Alto Lee Tipton, Jr., Appellants, v. STATE of Florida, Appellee.
• Decision Date: 02 October 1957
• Court: United States State Supreme Court of Florida

Page 277

97 So.2d 277

John H. TIPTON and Alto Lee Tipton, Jr., Appellants, v. STATE of Florida, Appellee.

Supreme Court of Florida.

Oct. 2, 1957.

Marion B. Knight, Blountstown, for appellants.

Richard W. Ervin, Atty. Gen., and B. Jay Owen, Asst. Atty. Gen., for appellee.

DREW, Justice.

The defendants were convicted of manslaughter under Section 782.07, Florida Statutes 1955, F.S.A.:

'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 chapter, 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 information charged that the defendants 'did unlawfully and feloniously, by their act, procurement and culpable negligence and with utter disregard for the life and safety of H. D. Stevenson, did kill the said H. D. Stevenson by pushing, shoving and ill treating the said H. D. Stevenson'.

Chronologically, but not causally stated, the following rapid concatenation of events took place: the defendants stopped at deceased's filling station to purchase gasoline; in the course of the transaction there was a certain amount of arguing between defendants and deceased over deceased's refusal to cash a check for one of the defendants; the defendants allegedly pushed deceased, but did not hit him; deceased fell to the floor and ostensibly died of a heart attack.

Our search in directed to the proposition of determining whether the evidence supports the jury verdict and whether the trial judge correctly instructed the jury as to the conduct which is proscribed by the manslaughter act. The only testimony which connects these defendants in any way with the death of deceased is that of deceased's wife, Mrs. Stevenson, and for this reason we include an extensive portion of her testimony [Mrs. Stevenson]:

'A. Well, we had just finished hanging a door, Mr. Stevenson had just finished it, and we had opened some drinks and eat some crackers, and these boys drove right up in the house you might say, they drove up between the pumps and the door, which nobody hardly ever does, Mr. Stevenson went and asked them what he could do for them and they said they wanted some gasoline and he asked them how much and they said fill it up, Mr. Stevenson filled the car with gas and he came back in, and he, (pointing toward one of the Defendants), asked him if he would cash a check and Mr. Stevenson told him no, he told him, he says, 'I don't know you and I can't cash the check,' * * *.

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'A. Well, Mr. Stevenson says 'boys, I cant's take your check' and one of them says 'how are you going to get paid for your gas if you don't cash the check, he says I've got money in the bank at Blountstown, if you don't believe it just pick up the 'phone and call the bank and they'll tell you I've got money there in the bank', and of course it was too late to call the bank there was nobody there at that time of day, Mr. Stevenson says I don't think I'll have too much trouble getting my money for the gas, and they started using bad language again, they had already been using it, and Mr. Stevenson turned around and said 'look here, boys, that's my wife over there and I wish you wouldn't use that kind of language, and they got worse, and worse, and the more Mr. Stevenson tried to get them to hush the more they said and it just went from bad to worse and he asked them to leave. * * *

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'* * * and I went around the Counter to go out and they were in a huddle, and my husband was between them, I got to the end of the store and I heard him when he fell and I turned back, I knew he had some tablets in his pocket and I reached in his pocket and got them out and then I ran to the 'phone and (pointing toward one of the Defendants) he jerked the 'phone, and I said 'I'm not going to call the law' and he says 'you're not going to call anybody,' and I says 'please let me call my son' and he wouldn't do it, I had to go across the road to Mr. Davis' to call him. * * *

'Q. Let's go back to where they were there near the Ice Box, Mrs. Stevenson. A. They was pushing him there, they just pushed him toward the Ice Box as I started out of the store, I wouldn't say that either of them laid their hands on him to hit him, but they did push him, they was still trying to get him to cash the check then.

'Q. Had they paid for the gas? A. Yes, he had paid for the gas but they was still arguing about the check after they had paid for the gas. * * *

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'A. No, I don't think either one of them hit him at all, but they pushed him around a little bit, they were all in a huddle over there and they were talking so ugly until my husband asked me to get out of the store.

'Q. Would you say they pushed him or he kept getting closer to them? A. They got closer to them, and they put their hands on him.

'Q. Which one of them? A. I don't know.

'Q. Allright, then, you don't know that either of them put their hands on him, do you? A. Yes, I do, they had their hands on him.

'Q. Well, which one was it had his hands on him? A. I don't know which one it was.

'Q. Actually, Mrs. Stevenson, neither of them put their hands on your husband did they? A. Yes, they did, they put their hands on him.'

The trial judge charged the jury in the following manner:

'I charge you, Gentlemen of the Jury, that the laying on of your hands in a rude and angry manner would constitute an assault; but before you can find these Defendants guilty of anything you must find that they made an unlawful assault on H. D. Stevenson.

'The defense relies on the fact that the deceased had a heart disease; but if you should find beyond a reasonable doubt, from the evidence in this case, that they made an assault on him, in the manner and by the means as charged in the Information, and that at the time the deceased was suffering from some disease of malady, and an attack of such malady or disease was brought on by such injuries so unlawfully inflicted upon the deceased by the Defendants, if you find that the Defendants did unlawfully inflict injuries upon the deceased, and that the deceased died from such attack brought on by such injuries inflicted, then the Defendants would be guilty of the death of the deceased, even though the injuries may not have caused death if he had not been suffering from such disease or malady.

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'If you should find from the evidence beyond a reasonable doubt that the Defendants, in Jackson County, Florida, at any time within two years prior to the filing of this Information, which was filed on November 8, 1955, made an unlawful assault upon H. D. Stevenson, and either the injuries from the assault or the assault itself brought on a heart attack, from which the deceased died, if you find that state of facts, beyond a reasonable doubt, then, it would be your duty to find the Defendants guilty as charged.'

From the evidence and the charge we conclude that the jury could have found that the defendants placed their hands on deceased and that both defendants were drunk, disorderly and cursed deceased in the presence of his wife. The actual medical cause of death is unknown.

Deceased was 63 years of age and had been consulting a doctor for the last four months prior to his death because of an advanced stage of Angina Pectoris which was due to a coronary artery disease. The record contains expert testimony that 'when a person suffering with Angina becomes excited, gets mad, over-works or over-eats this Artery has a way of closing up.' Such a reaction can cause death. However, there was no testimony in this record (which according to the instructions to the clerk contains all the testimony at the trial) to show any cause of deceased's death from a medical viewpoint. More specifically, there is no testimony to show a causal connection between the alleged 'pushing, shoving and ill treating' and the death of deceased. The expert witness who testified had not examined the body and did not testify that a heart attack caused deceased to die, but death by heart attack was a basic assumption of the trial. The expert witness was asked the following crucial question:

'Q. Dr. Latiolais, if Mr. Stevenson had exerted himself in doing the work I have outlined in re-building and rehanging a screen door without resting, and immediately following that have become angry, and then, following that, he had a heart attack that proved fatal, would it be possible to determine which of the three things mentioned, the work, the excitement or anger, or the heart attack determined his death? A. I don't think so. I don't think you could say which one precipitated the final attack.'

Furthermore, the expert witness stated that before deceased's death there was no way to predict his life span: 'We know a man having Angina Pectoris, at his age, was subject to have an attack at any time, we didn't know whether he would live a week, a month or how long he would live.'

The information charged manslaughter in the language of the statute, but instead of using the disjunctive 'or' between 'procurement' and 'culpable negligence' it used the coordinate 'and'. Therefore a charge was given relating to culpable negligence. Naturally, the parties on appeal have discussed culpable negligence; but this case does not involve that doctrine. The crucial acts involved in the case at bar were the non-forceful, but rude pushes of defendants' hands against deceased. Human experience does not warn against such acts as being physically harmful when perpetrated upon people generally, and defendants were not put on notice of unusual conditions in deceased which would change the objective view of the risk. Their acts in relation to the circumstances were reprehensible, but did not amount to...