
    Augustus CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. T-460.
    District Court of Appeal of Florida, First District.
    June 6, 1974.
    Rehearing Denied June 25, 1974.
    Charles Thomas Shad, of Law Offices of S. Perry Penland, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

The appellant seeks reversal of his conviction for manslaughter, claiming that the trial judge erred in failing to instruct the jury upon the definition of culpable negligence as contained in the instruction on that crime as given by the trial judge to the jury.

Appellant was charged by information with murder in the second degree. The evidence revealed a history of conflict between appellant and decedent. Self-defense was urged as the reason for appellant having armed himself (in anticipation of being attacked by the decedent) but the actual shooting was, according to the appellant, accidental.

At the conclusion of the evidence the trial judge stated that he was “going to instruct on all the instructions as provided in the Standard Jury Instructions except” circumstantial evidence. The jury was charged on the lesser included offenses including manslaughter, which was defined as “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.” Culpable negligence was not defined. At the conclusion of all of the instructions the trial judge inquired of the attorneys: “All right, gentlemen, are there any other requested instructions?” To that query each attorney responded in the negative. The judge then asked if there were any objections “to the instructions as given” to which both the State and the defense responded in the negative.

The appellant now urges that, notwithstanding the above, the failure of the trial court to distinguish culpable negligence from any other kind of negligence and the failure to define culpable negligence so that the jury would have a basis upon which to determine whether or not the evidence conformed to the legal definition thereof is fundamental error, requiring reversal for a new trial. Appellant relies heavily upon the decision of this Court in Bryan v. State, Fla.App. (1st) 1972, 271 So.2d 197. The facts of that case are not distinguishable from those sub judice. We thought then, and think now, that “culpable negligence” as defined in the Standard Jury Instructions is applicable to the instructions on manslaughter and that the failure to so instruct the jury constituted fundamental, prejudicial and reversible error. We there said:

“ * * * These terms are also on the technical side and were terms that are not commonly used in every day conversation. The trial court should have defined to the jury what the court considered to constitute ‘culpable negligence’ and we think this was prejudicial error. What constitutes ‘culpable negligence’ is so technical that the Supreme Court of Florida devoted the major portion of one of its opinions [Smith v. State, 65 So.2d 303 (Fla.1953)] in explaining what it means. Also see McCullers v. State, 206 So.2d 30 (Fla.App. 4th, 1968)” (at page 199)

Appellant contends, and we agree, that the failure of the trial court to instruct the jurors on the legal definition of culpable negligence left the appellant open to conviction of the crime of manslaughter upon any individual juror’s definition of culpable negligence, regardless of what that definition consisted of; and even if the juror’s personal definition was not different from any other type of negligence, including simple negligence, the basis for conviction thereby shrinks from the legal posture to one of unguided and unpredictable speculation by the jurors. It seems basicly unfair, to the jury as well as the defendant, to leave the average layman who serves as a juror to his or her own interpretation and definition of complicated, technical legal terms such as culpable negligence when the makeup of that definition consists of the essential elements of the crime itself.

The evidence in the case sub judice was such that a juror who was unfamiliar with guns might well have (without proper instructional guidance) decided that the mere procuring of the gun without more constituted culpable negligence. Other jurors, better acquainted with weapons, might well have found, if properly instructed on culpable negligence, that none of the acts revealed by the evidence reached the definition.

Alas, however, our Supreme Court holds to the contrary: State v. Bryan, Sup.Ct.Fla.1973, 287 So.2d 73. There, under virtually identical circumstances, the Supreme Court held:

“Absent objection to the charges in question, and finding no fundamental error, we view the charges of the trial judge as being sufficient and proper under the circumstances before the court at the trial.” (at page 77)

In the last mentioned case defense counsel had failed to object to the failure to give the Standard Jury Instruction defining culpable negligence incident to the lesser included offense of manslaughter “prior to the jury instructions.” In the case now before us not only did the defense counsel fail to request that instruction prior to the settlement of charges but specifically approved the instructions given after they were delivered.

If no fundamental error existed in the Bryan case where the defense counsel failed to object in advance to the failure to define culpable negligence, a fortiori the specific approval by defense counsel of the instructions given in the case sub jud-ice removes the omission of the definition of culpable negligence from the realm of fundamental error.

We think by far the better practice is for the trial judge to give the instruction on culpable negligence as set forth in the Standard Jury Instructions incident to manslaughter whether or not it is requested. Indeed, we still feel that it is reversible error to fail in so doing. However, the Supreme Court has spoken and as observed by it in the Bryan case, supra, “it is always last!”

Affirmed.

SPECTOR, Acting C. J., concurs, and McCORD, J., concurring specially.

McCORD, Judge

(concurring specially).

I agree with the opinion of Judge Boyer that this case must be affirmed on authority of State v. Bryan, Sup.Ct.Fla.1973, 287 So.2d 73. While it is probably superfluous to add to the “beating of a dead horse,” I will make a few additional observations in this matter.

The trial court here and in State v. Bryan, supra, did not omit a separate instruction not requested by the defendant but it omitted what I consider to be an essential part of the standard jury instruction on manslaughter. The manslaughter charge appears on page 91 of the Florida Standard Jury Instructions For Criminal Cases and it is divided into two parts — (1) Definition and (2) Culpable Negligence. To omit the second part is to fail to give the complete and proper instruction. When the trial judge announced at the conference on instructions that he would give the standard instructions with the exception of the instruction on circumstantial evidence, defense counsel had every-right to assume that he would give the complete manslaughter instruction and not just a part of it. The manslaughter charge of the standard instructions is substantially the same charge (with the definition of culpable negligence included) which has been given by trial judges of this state in homicide cases for many years prior to adoption of standard instructions. The only difference is that the standard instruction has a more abbreviated definition of culpable negligence.  