Graives v. State , 127 Fla. 182 ( 1936 )

The writ of error brings for review a judgment of conviction on two counts of an information, each charging manslaughter.

The first count is under Section 5563 R.G.S., 7749, C.G.L., as amended by Chapter 11809, Acts of 1927.

The second count is under Section 5039 R.G.S., 7141 C.G.L.

The plaintiff in error has submitted nine (9) questions to be determined by the Court.

The first question is:

"Did the instructions to the jury on the proposition of excusable and justifiable homicide, in a case for manslaughter by negligence, prevent proper consideration by the jury of the real issues which they were to try?"

The Court's charge in regard to excusable and justifiable homicide was not erroneous, but, on the contrary, in view of the provisions of Section 5039 R.G.S., 7141 C.G.L., it was the duty of the Court to instruct the jury as to justifiable and excusable homicide. There is no complaint that the Court refused to give any instructions which were requested by the defendant in this regard and, therefore, the defendant is not in position to complain if in his opinion the instructions given by the Court in this regard were not as full as he would like to have had them be.

The second question is:

"Is contributory negligence of others a circumstance to be considered by the jury under tendered instructions, so the jury could determine whether death was or was not caused by an unlawful driving or grossly negligent act of defendant?"

This question has been determined adversely to the contention of the plaintiff in error in Austin v. State, 101 Fla. 990,132 So. 491.

The third question is:

"In a case for manslaughter by negligence, where defendant is on trial for the killing of two persons, is it proper to admit evidence of the death of others, growing out of the same accident?"

The record shows that four persons were killed at the same time and by the same means. Two of them were B.T. Rawlins and Annie Rawlins. In telling of the circumstances, it was necessary for the witness to tell of what happened there, and, therefore, the record showed that other persons were killed at the same time. There was no error committed by admitting that testimony in evidence. It was a part of the res gestae.

The fourth question is:

"Did the general instruction upon the question of intoxication prejudice defendant and instruct the jury, in effect, that it must be found as a fact that defendant was not engaged in an unlawful act before they should acquit him?"

We do not find in the record any requested charge by which the trial judge was requested to instruct the jury any further in regard to intoxication than he had instructed them in the charges which are complained of and made the basis for assignments of errors numbered 9, 11, 14 and 15. The charges were entirely correct as far as they went and, if defendant wished the court to instruct further, the request should have been made in writing at the time.

The fifth question is as follows:

"Did the admission into evidence of State's Exhibit No. ``5,' consisting of a purse and unopened pint flask of liquor found on the body of the dead colored girl, prejudice the jury against the defendant, and was it error to admit the same into evidence on the trial?"

The main objection is to the fact that a pint of liquor found on the dead woman who had been in the automobile with defendant was offered in evidence. That, too, was a part of the res gestae and no reversible error was committed by its introduction before the jury. Counsel cites the case of Duke v. State, 106 Fla. 205,142 So. 886, in support of his contentions. There is nothing in that case which has any bearing on the question here involved.

The Alabama case of Patterson v. State, 23 Ala. App. 428,126 So. 420, is not at all in point either.

The sixth question is:

"Did the proof submitted by the State show beyond reasonable doubt that the conduct of defendant was reckless, and did it show such a degree of culpability as to amount to gross neglect on his part?"

A careful perusal of the evidence shows that the proof was ample to sustain the finding of the jury that the defendant was guilty of culpable negligence in the manner in which he was driving and handling the automobile at the time the accident occurred.

Question number seven is as follows:

"Was not the defendant entitled to the tendered instruction that if the jury believed the accident was the result of inadvertence, not amounting to culpability, or what is termed an accident, then they should find the defendant not guilty?"

This question is founded upon the refusal of the Court to give charges numbered 4, 6, 8, 9, 12 and 13. Neither of these charges correctly stated the law and the principles of law attempted to be covered by each had been sufficiently covered by the general charge given by the court.

The eighth question is as follows:

"Was it proper to recharge the jury, after it had retired to consider the verdict, without advising counsel of its intention to do so?"

There is nothing in the record to show that there was any improper conduct on the part of the Court in recharging the jury as suggested in this question. The record shows that the jury returned into court an improper verdict and thereupon they were instructed to return to the jury room and consider, deliberate and return to court a verdict indicating upon which count or counts of the indictment the verdict was based.

A second verdict return was likewise not received by the Court and the jury was again instructed in this regard. Whereupon the jury again returned to its room and after deliberation returned a verdict finding defendant guilty under both counts of the indictment which was evidently the intent of the jury to have done as the two former verdicts read: "We, the jury, find the defendant guilty as charged. So say we all."

Question number nine is as follows:

"Is the verdict of the jury, finding the defendant guilty of both counts of the indictment, supported by the evidence adduced at the trial?"

We think the evidence amply sufficient to have warranted the jury in finding defendant guilty on both counts of the indictment. There was no motion made at any stage of the trial to require the State to elect upon which count of the indictment it would stand. The evidence was sufficient to warrant the jury not only in determining that the defendant was intoxicated while driving the automobile at the time it came into collision with the other automobile, the result of which collision was the death of the parties named in the indictment, but it was also sufficient to warrant the jury in finding that the defendant was not only intoxicated at that time but that he was also guilty of culpable negligence in the manner in which he was operating the automobile on the public highway, which careless operation resulted in the death of the parties named.

The judgment should be affirmed.

It is so ordered.

Affirmed.

ELLIS, P.J., and TERRELL, J., concur.

WHITFIELD, C.J., and BROWN, J., concur in the opinion and judgment.

DAVIS, J., concurs specially in the conclusion.