Kay v. State , 114 Fla. 44 ( 1934 )

STATEMENT. On March 23, 1932, the plaintiff in error, Lew Kay, was driving a large Studebaker automobile from the City of Tampa, Florida, towards Clearwater, being accompanied by a woman named Tillie Mann, who was sitting on the front seat to the right of the driver. The time was late in the afternoon. There is substantial evidence that the defendant had been drinking intoxicating liquors shortly prior to the homicide which forms the basis of the prosecution here involved. Whether or not the defendant was "drunk" was a proposition as to which the evidence was in conflict.

As Kay attempted to drive over a bridge known as "Stevenson's Creek" bridge (the width of which was less than the road right-of-way), the defendant's car, while being driven rapidly, collided with a portion of the approach of the bridge on the south side. The collision with the approach to the bridge was of such force that the right front wheel of defendant's car was knocked off, and the defendant and his woman companion were apparently rendered unconscious by the concussion.

After striking the bridge, the defendant's automobile, under its own momentum, hurtled across the bridge in a zig-zag direction for a distance of 42 feet. As a consequence of striking the bridge and while out of control, and after the defendant and his companion (so they testified) had been rendered unconscious by reason of the shock which they had suffered when the car struck against the bridge, the defendant's said automobile, after traveling the 42 feet aforesaid, collided with another car approaching from the opposite direction. As a result of the latter collision, Miss Merle Sutton, an occupant of the last mentioned car, was struck and killed. Her sister, Miss Lois Sutton, driver of the other car, was rendered unconscious.

The indictment returned in this case was as follows:

"IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:

"The Grand Jurors of the State of Florida, impaneled and sworn to inquire and true presentment make in and for the body of the County of Pinellas, upon their oath do present that Lew Kay, late of the County of Pinellas and State of Florida, on the 23rd day of March in the year of our Lord, one thousand nine hundred and thirty-two, in the County and State aforesaid did then and there unlawfully, without authority of law, and by and through his own act, procurement, and culpable negligence, and with utter disregard for the life of one Merle Sutton, while intoxicated by the use of alcoholic liquors, drive a certain automobile, a more particular description of which automobile is to the Grand Jurors unknown, and of his culpable negligence, at a high rate of speed, and in a negligent, careless and reckless manner, did drive said automobile in such a manner as to strike and run into and against an automobile in which the said Merle Sutton was then and there riding, and by thus striking and running into and against said automobile in which the said Merle Sutton was then and there riding with such force. and violence as to cause the said Merle Sutton to be violently thrown against said automobile, and he, the said Lew Kay, in the manner and by the means aforesaid, without authority of law, and by and through his own act, procurement and culpable negligence, while intoxicated by the use of alcoholic liquors, did then and there give to and inflict upon the said Merle Sutton, in and upon her body and head, mortal wounds, bruises and contusions, of which said mortal wounds, bruises and contusions so given and inflicted, unlawfully, without authority of law, and by and through the said act, procurement and culpable negligence of the said Lew Kay as aforesaid, the said Merle Sutton then and there died; wherefore, by virtue of the statute in such case made and provided, the said Lew Kay is deemed to have committed the crime of manslaughter; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida."

Under this indictment as framed, the Court charged the jury that it was not only necessary that the State prove the alleged culpable negligence as the cause of an unlawfully inflicted death, but further that defendant was intoxicated at the time he was driving the car that caused the death complained of.

Upon submission to the jury, a verdict of guilty as charged was returned and defendant sentenced to ten years imprisonment. The writ of error here is to a judgment of the Circuit Court in and for Pinellas County wherein the plaintiff in error was adjudged guilty of manslaughter.

We deem it unnecessary to discuss more than two of the questions presented by the plaintiff in error for our determination.

There was a motion for change of venue, which motion was denied. When the record in this case is measured by the rule enunciated by this Court in the case of Jeffcoat v. State,103 Fla. 466, 138 So. 385, we find no reversible error in the order of the Court denying the motion.

Motion was made to quash the indictment because of duplicity. The indictment contained every allegation necessary to charge the offense of manslaughter under the provisions of Section 5039, R. G. S., 7141 C. G. L., and it also contained all the allegations necessary to charge the same offense under the provisions of Chapter 9269, Acts of 1923, and all allegations were combined in one count.

Section 5039, R. G. S., 7141 C. G. L., declares that certain acts shall constitute the offense of manslaughter; while Chapter 9269, Acts of 1923, declares that certain other acts shall also constitute the offense of manslaughter and shall be punished as is provided by law for the offense of manslaughter.

The fact that all allegations essential to charge the offense under either statute are contained in one count of an indictment does not under the adjudicated cases in this jurisdiction make the indictment invalid or subject to motion to quash because of duplicity.

In the case of Irvin v. State, 52 Fla. 51, 41 So. 785, this Court quoted with approval the former enunciation of this Court in the case of Bredley v. State, 20 Fla. 738, saying:

"When a statute makes either of two or more distinct acts, connected with the same general offense, and subject to the same punishment, indictable as distinct crimes, they may, when committed by the same person, at the same time, be coupled in one count and constitute but one offense; and such an indictment will not be subject to the charge of being duplicitous."

We have examined the other assignments of error and find no reversible error disclosed by the record.

The judgment should be affirmed, and it is so ordered.

Affirmed.

DAVIS, C. J., and WHITFIELD and TERRELL, J. J., concur.