269 So. 2d 415 | Fla. Dist. Ct. App. | 1972
Redden was charged with manslaughter.
Two questions concern us: the first concerns our jurisdiction. Redden moves to dismiss the State’s appeal on the ground that our Supreme Court’s decision in State v. Smith,
However, we may treat the appeal as a petition for writ of certiorari and determine, as the Supreme Court did in Smith, whether there is a departure from the essential requirements of law. We think there is.
The question now arises whether the facts set forth in the State’s proffer are sufficient to carry the case to the jury if the witnesses testify substantially as predicted. The facts which the State proffers are essentially these: Redden used to live in the Arcadia neighborhood in which the tragedy occurred, and knows that there are a lot of children there. He had been drinking heavily on that day, and was visiting with some friends on their porch. He boasted of his car’s speed. When he left, he spun his wheels backing up, then accelerated forward along the narrow street, again spinning his wheels, shifting around in the seat and looking elsewhere than at the road ahead. His car hit the child as she ran across the road, while Redden was still accelerating.
Clearly a jury could find Redden culpably negligent on this evidence. The test is whether the negligence of the defendant is of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a 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
In dismissing this case the trial judge gave no reasons, and we must assume that some misconception argued by Redden on appeal underlies the order.
Redden’s counsel argues that there is no evidence of excessive speed, or even of the limit at the place where the accident occurred. Speed is but a single element in the offense, and in a particular case it need not be an element at all. Here it is alleged that Redden accelerated so rapidly as to spin his wheels, and that he was moving around in the seat and looking away from the street ahead. In his brief Redden argues as fact his version of the event, which is appropriate before the jury, but not on motion to dismiss.
Redden also argues that the fact that the defendant had been drinking before the accident does not “in and of itself” establish culpable negligence. That statement is true enough, but misleading. He cites Jackson v. State, Fla.App.1st 1958, 100 So.2d 839; Smith v. State, Fla.1953, 65 So.2d 303, and Clowney v. State, Fla.App.2d 1957, 97 So.2d 316, as authority. In Jackson and Clowney the convictions were affirmed. In Smith, the jury acquitted the defendant on the count alleging that the death resulted from an accident in which the defendant was driving under the influence of alcoholic beverages, and there was not sufficient evidence that the defendant was culpably negligent in the deaths of two women wearing dark clothes, walking on a rural highway at night where the defendant had no expectation of seeing pedestrians, and where the undisputed evidence showed an effort to avoid impact. The case before us is markedly different.
Redden also argues that if the child had not run into the road the accident would not have occurred. This argument is fallacious. What is charged here is Redden’s culpable negligence, and the deceased’s conduct may be a factor, as it was in Smith, in demonstrating the absence of culpable negligence, but contributory negligence is no defense. In Russ v. State, 1939, 140 Fla. 217, 191 So. 296, the deceased was walking across a busy highway, and it was shown that the defendant had driven off the road in an effort at avoidance. Only an allegedly excessive speed grounded the charge of culpable negligence. The Supreme Court stated (191 So. at 299), “the deceased when crossing the highway was charged with the exercise of such care as was necessary for her own self preservation.” That dictum is unfortunate if it encourages belief in a “but for” rule in manslaughter prosecutions. Of course the deceased’s conduct may be relevant to the question of culpable negligence on the defendant’s part, but it would not even be a valid defense in a civil action founded on gross negligence,
The evidence proffered by the State is so clearly sufficient that, if believed, a jury would be fully justified in finding Redden culpably negligent. Accordingly, we grant certiorari and quash the order dismissing the information.
. Fla.Stat. § 860.01, F.S.A., is cited in the information, but it is apparently drawn to charge an offense under Fla.Stat. § 782.07, F.S.A., (1971). This discrepancy is not argued here.
. 1972, 260 So.2d 489, affirming (on this point) the decision of the Court of Appeal for the First District at 254 So.2d 402.
. Fla.Const. Art. V, § 5(3), F.S.A.
. Cannon v. State, 1926, 91 Fla. 214, 107 So. 360; see also Judge McNulty’s opinion in Mills v. Cone Brothers Contracting Company, Fla.App., 265 So.2d 739, opinion filed August 25, 1972.
. Fulton v. State, Fla.1959, 108 So.2d 473; Johnson v. State, Fla.1957, 92 So.2d 651; Fort v. State, Fla.1956, 91 So.2d 637; Hunt v. State, Fla.1956, 87 So.2d 584; Tegethoff v. State, Fla.App.4th 1969, 220 So.2d 399; McDougal v. State, Fla.App.2d 1966, 181 So.2d 539; Hamilton v. State, Fla.App.2d 1963, 152 So.2d 793; Flint v. State, Fla.App.2d 1960, 117 So. 2d 552; Penton v. State, Fla.App.2d 1959, 114 So.2d 381.
. Johnson v. Rinesmith, Fla.App.2d 1969, 238 So.2d 659.
. Carraway v. Revell, Fla.1959, 116 So. 2d 16; see Glaab v. Caudill, Fla.App.2d 1970, 236 So.2d 180, and cases there cited.