
    Marvin HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. W-389.
    District Court of Appeal of Florida, First District.
    June 18, 1976.
    Lacy Mahon, Jr., of Mahon, Farley & Vickers, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   TENCH, BENJAMIN M., Associate Judge.

The parties will be referred to as in the trial court.

At approximately five o’clock in the afternoon, defendant was driving his pickup truck on Rayford Street in Jacksonville, after having had three drinks of whiskey over a period of two hours. He testified that he felt no intoxication, and the state presented no witnesses who could testify that the defendant had consumed any amount of intoxicants other than that testified to by the defendant. The speed limit in this area was 30 miles an hour, and defendant testified he was traveling at about 35 miles an hour as he approached the scene of the accident. He testified that he was in his proper lane, that the intersection at which the accident occurred was not a stop street, and that in all respects he was obeying the traffic laws. The state presented no evidence to the contrary.

As the defendant approached the intersection of Day Avenue and Rayford Street, three small children started across the street on which the defendant was driving and almost completed crossing the street. Suddenly, one of the minor children, Esther Bell, turned and ran back across the street and into the path of defendant’s truck. She was hit by the truck and subsequently died.

A blood-alcohol test later given to the defendant resulted in a reading of .27, and there was additional testimony that the defendant smelled of intoxicants and that his face was flushed.

The state charged the defendant in a two-count information with the offenses of manslaughter by culpable negligence (F.S. Section 782.07) and manslaughter by intoxication (F.S. Section 860.01(2)). The jury found the defendant guilty only of manslaughter by intoxication, which was charged in the following language:

“And for a second count of this information, your informant further charges that MARVIN HARRIS, on the 21st day of January, 1974, in the County of Duval and State of Florida, did then and there, while under the influence of intoxicating liquors to such an extent that he was deprived of his normal faculties, the said MARVIN HARRIS did drive and operate a truck into, upon and against ESTHER BELL, then and there giving and inflicting divers mortal wounds upon the said ESTHER BELL, of and from which said mortal wounds so inflicted as aforesaid, the said ESTHER BELL, did then and there die, contrary to the provisions of Section 860.01(2), Florida Statutes.”

Among other things, we are called upon to determine whether the information charged a crime. We hold that it did not.

The essential elements of the offense of manslaughter by intoxication are set out in F.S. Section 860.01(2):

“If, however, the damage to property or person of another, other than damage resulting in death of any person, is done by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, by reason of the operation of any of said vehicles mentioned herein, he shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083, and if the death of any human being be caused by the operation of a motor vehicle of any person while intoxicated, such person shall be deemed guilty of manslaughter, and on conviction be punished as provided by existing law relating to manslaughter.”

From the relevant case law concerning the statute cited, there appear to be three essential opinions to be examined. The first of these is Cannon v. State, 91 Fla. 214, 107 So. 360 (1926), in which the Florida Supreme Court held that an indictment charging manslaughter through the operation of a motor vehicle by one “under the influence of intoxicating liquor” did not sufficiently charge a crime under the statutory predecessor to Section 860.01(2). The Court held that, to charge manslaughter by intoxication, a charging document must specify that a defendant was intoxicated, saying:

“. . . The additional words in the indictment, ‘being at the time under the influence of intoxicating liquor,’ are not, in the commonly accepted meaning of such words, synonymous with or equivalent to the words in the amendatory statute, which are ‘while intoxicated.’ Though all persons intoxicated by the use of alcoholic liquors are ‘under the influence of intoxicating liquors,’ the reverse of the proposition is not true; for a person may be under the influence of intoxicating liquors without being intoxicated.
It is true that chapter 9269, above referred to, amending section 5563 of the Revised General Statutes, makes it a misdemeanor for any person ‘while in an intoxicated condition or under the influence of intoxicating liquors to drive’ any automobile or motor vehicle on the streets or highways of this state, but it is only where death results from the operation of a motor vehicle by a person ‘while intoxicated’ that is defined as manslaughter. . . .” (107 So. 362)

The second opinion which must be considered is that in Clowney v. State, 97 So.2d 316 (2nd D.C.A.Fla.1957). In that decision the Court dealt not with the sufficiency of the information, which charged manslaughter from operating an automobile “while intoxicated,” but with the instruction of the lower Court to the jury. The Court held:

“This court is of the opinion that while the Judge of the lower court was in error in his instruction to the jury, to-wit:
“If the death of 'any human being be caused by the operation of an automobile by a person under the influence of intoxicating liquor, he shall be deemed guilty of manslaughter, and upon conviction, shall be punished as provided by the law relating to manslaughter,” ;
in view of the fact that the court in the subsequent paragraph defined intoxication as follows:
“Intoxication, lady and gentlemen, I charge you, as used in the second count of the Information, means under the influence of intoxicating liquor to such an extent as to deprive one of the normal control of one’s body or mental faculties, or both.”,
such error was not prejudicial.” (97 So. 2d 321)

The third opinion to be considered is that of the Supreme Court of Florida in reviewing, on Petition for Writ of Certiorari, the District Court opinion in Clowney. In Clowney v. State, 102 So.2d 619 (Fla.1958), the Supreme Court reviewed the decisions which had been cited by the petitioner for conflict with the District Court opinion in Clowney (including Cannon v. State, supra) and found no conflict, discharging the Writ of Certiorari it had issued. In discussing the jury instructions given by the trial court, the Supreme Court arrived at a definition of “intoxicated” and approved that given by the trial Judge as being substantially the same. The court did not, however, discuss the sufficiency of the language necessary in an indictment or information to charge the crime of manslaughter under F.S. Section 860.01(2), except to cite with approval its own decision in Cannon v. State, supra:

“. . . Taking the opinions in the order cited, it was held in Cannon v. State, supra, that there was a distinction between the word “intoxicated” and the term “under the influence of intoxicating liquor,” for a person might be under the influence of liquor without being intoxicated. [91 Fla. 214, 107 So. 361] In that case, as we have indicated, the court was considering the allegations of the indictment.” (102 So.2d 620-1)

In the case we have for review, therefore, we are obliged to follow the decision of the Supreme Court of Florida in Cannon v. State, supra, that, to charge the crime of manslaughter under Section 860.-01(2), the charging document must allege that the death of a human being was caused by the operation of a motor vehicle by a defendant “while intoxicated.” Since the information in this case did not so charge the defendant, the trial court erred in denying the defendant’s pre-trial motion to dismiss the count charging manslaughter by intoxication on the ground that it failed to charge a crime, and the conviction must be reversed.

We reverse and direct that the defendant be discharged.

MILLS, J., concurs.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(specially concurring).

I concur in the result reached and the reasoning thereof.

In the Clowney case (cited in the majority opinion) the appellant, as in the case sub judice, was charged in the first count with the offense of manslaughter by culpable negligence and in the second count with manslaughter by intoxication. As here, the jury in the Clowney case found the appellant not guilty under the first count but convicted him under the second. In Clowney, the second count alleged that the defendant caused the death of a person when the defendant struck such person with a car “while intoxicated by the voluntary use of alcoholic liquor * * In the case sub judice, the defendant was not charged with causing the death of another “while intoxicated”: On the contrary, the second count of the information sub judice alleged that the defendant caused the death of another “while under the influence of intoxicating liquors to such an extent that he was deprived of his normal faculties * * * »

In the Clowney case, appellant’s attack was upon the instructions given by the trial court. Sub judice the attack is upon the information itself. The Supreme Court of Florida, in Clowney, recognized the distinction when it stated:

“The circumstances in the present case are not precisely those with which the court dealt in the three cases already cited. [Cannon v. State, 91 Fla. 214, 107 So. 360, Taylor v. State, Fla., 46 So.2d 725, and Smith v. State, Fla. 65 So.2d 303] In Cannon v. State, supra, the defendant had been charged in a single count with both kinds of manslaughter, namely by culpable negligence and while intoxicated. This court held that the allegations were insufficient to charge intoxication and that the charges with reference to culpable negligence, were deficient so the judgment of conviction was reversed. In both Taylor v. State, and Smith v. State, supra, the defendants were found not guilty of causing death when driving while intoxicated.”
“. . . Taking the opinions in the order cited it was held in Cannon v. State, supra, that there was a distinction between the word ‘intoxicated’ and the term ‘under the influence of intoxicating liquor,’ for a person might be under the influence of liquor without being intoxicated. [91 Fla. 214, 107 So. 361] In that case, as we have indicated, the court was considering the allegations of the indictment.
“In the next cited case, Taylor v. State, supra, [46 So.2d 726], we referred to the Cannon case, and reiterated the announcement that the word ‘ “intoxicated” ’ and the term ‘ “under the influence of intoxicating liquor” ’ were not synonymous, the former being a stronger expression. In Smith v. State, supra, we recognized again this distinction.” (102 So.2d 620-621)

The Supreme Court thereupon held that the District Court’s opinion in Clowney “did not clash with decisions” of the Supreme Court and thereupon denied the writ of certiorari. It seems to me, therefore, that the Supreme Court in Clowney did not approve the substitution in the charging information of any terminology for the words of the statute, viz: “while intoxicated”. On the contrary, as the above quoted portion of the Supreme Court’s opinion in Clowney demonstrated, the court recognized that the word “intoxication” and the term “under the influence of intoxicating liquor” were not synonymous, the former being a stronger expression. (See also Cannon v. State, supra)

Even had it been the intention of the Supreme Court in Clowney to hold that the lesser expression might be substituted in the charging information for the words mandated by the statute, viz: “while intoxicated”, the information sub judice nevertheless did not reach the definition of intoxication inferentially approved by the Supreme Court in Clowney. There the Supreme Court appears to have defined intoxication to mean “under the influence of intoxicants to the degree that he [defendant] had been deprived of the normal control of his bodily or mental faculties.” Sub judice, the second count of the information charged the defendant with causing the death of another “while under the influence of intoxicating liquors to such an extent that he was deprived of his normal faculties.” The information omitted the crucial words “control of his bodily or mental” faculties.

In summary as I conceive the Supreme Court to have repeatedly held in the cases above cited, an information which seeks to charge manslaughter under F.S. 860.01 must allege that the death for which the defendant is charged with having caused by the operation of his motor vehicle was while such defendant was “intoxicated”. Upon a defendant having been so charged the trial judge is then free to define “while intoxicated” under the case law of the State of Florida; that being the subject of the Clowney case.

Since we have reversed on other grounds, it is perhaps not necessary to discuss appellant’s second point. However, because of its importance, I am of the view that it should be addressed. The trial court charged the jury regarding the presumption contained in F.S. 322.262(2) (c). Appellant now argues that charge to have been improper because of the basic inconsistency between the degree of intoxication required for conviction under F.S. 860.01(2). I am of the view that appellant is correct.

The presumption referred to in F.S. 322.-262(2)(c) applies to the offense commonly known as “driving while intoxicated.” To sustain a conviction under that particular criminal charge it is necessary only to prove that a defendant was under the influence of intoxicating beverage to the extent that he was deprived of the “full possession of his normal faculties”. However, where one is charged with manslaughter by intoxication, as in the instant case, the state must prove the defendant was intoxicated. The presumption raised by F.S. 322.262(2) (c) is immaterial to a charge of manslaughter by intoxication and a charge incorporating a reference to such presumption is likely to mislead the jury in its consideration of a charge of manslaughter by intoxication.

Further, although not squarely raised sub judice, I think it appropriate to observe that I have serious reservations as to the constitutional validity of interpreting the construction of any statute in such a manner to raise a presumption of guilt in a criminal case contrary to the cornerstone of the American system of criminal jurisprudence, to wit: That every person charged with a crime is presumed innocent until proved to be guilty beyond and to the exclusion of a reasonable doubt. Insofar as State v. Fitzpatrick, Fla.App. 4th 1974, 294 So.2d 708, cited by appellee, might be construed contra I respectively disagree with it.  