GRADY LEE MCHUGH
v.
STATE OF FLORIDA
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McHugh was charged with two separate manslaughter offenses arising from a single automobile accident that killed two news boys. The Florida Supreme Court held that a former jeopardy plea was properly rejected because double jeopardy protects against being tried twice for the same offense, not the same act, and where two separate victims are involved, there are two distinct offenses.
The plea of former jeopardy was properly rejected because double jeopardy applies to the offense, not the act causing the offense. Where two victims are killed in a single act, there are two separate offenses, and the different statutory requirements and different victim in each prosecution make them distinct crimes.
“Double jeopardy applies to the offense, not the act causing the criminal offense. The gist of this offense is the unlawful homicide of which there were two. There is an offense for each unlawful homicide.”
Establishes the core legal principle that double jeopardy is tied to distinct offenses, not single acts, and that multiple victims create multiple offenses.
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Join FLexlaw to unlock all legal intelligenceAppellant drove an automobile into a motor scooter, killing two news boys. He was charged under Section 782.07 with manslaughter for killing one boy t…
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This appeal presents a question of former jeopardy.
Appellant drove an automobile into a motor scooter and killed two news boys riding thereon.
Under Sec. 782.07, Fla. Stat., he was informed against and charged with manslaughter for killing one of the boys through culpable negligence. He was also charged, under Sec. *824860.01, Fla. Stat., with manslaughter for killing the other boy by operation of a motor vehicle while intoxicated.
On the former charge he was acquitted and when the other case was called for trial a plea of former jeopardy was interposed. This plea went out on demurrer and upon a plea of not guilty a trial was had resulting in conviction. Section 12, Declaration of Rights, “No person shall be subject to be twice put in jeopardy for the same offense. ...”
Elaborate briefs have been filed which reveal numerous cases in hopeless conflict.
In this jurisdiction the identical question has not been passed upon. We are of the opinion that the plea of former jeopardy was not tenable and the action of the court in sustaining a demurrer to it was proper. Our reasons are that this view is supported by the great weight of authority. See note in 172 A.L.R., page 1062 following a report of our decision in State v. Bacom, 159 Fla. 54, 30 So. (2nd) 744. Also People v. Allen, 368 Ill. 368, 14 N.E. (2nd) 397, 308 U.S. 511, 84 L. ed. 436, 60 S. Ct. 132; Fleming v. Com., 284 Ky. 209, 144 S.W. (2nd) 220; Com. v. Maguire, 313 Mass. 669, 48 N.E. (2nd) 665; State v. Freedlund, 200 Minn. 44, 273 N.W. 353, 113 A.L.R. 215; Fay v. State, 62 Okla. Crim. 350, 71 P. (2nd) 768; Lawrence v. Com. 181 Va. 582, 26 S.E. (2nd) 54; State v. Taylor, 185 Wash. 198, 52 P. (2nd) 1252.
Double jeopardy applies to the offense, not the act causing the criminal offense. The gist of this offense is the unlawful homicide of which there were two. There is an’offense for each unlawful homicide. It is not difficult to imagine a case where a defendant might by criminal negligence cause an explosion which would annihilate a number of persons. Great difficulty might arise on proving the actual death of one particular individual, yet it would be a travesty on justice to say that the wrongdoer could not then be again arraigned for the criminal killing of some other named victim. In the two imaginary cases the evidence would be different thereby observing the distinction noted and discussed in Driggers v. State, 137 Fla. 182, 188 So. 118 and other cases cited there.
*825One of the tests often required by this and other courts is whether the evidence will be the same in each prosecution.
It is well to point out here that in addition to the difference in identity of the'victims the statute requires different proof in other respects. In one case the state was required to prove culpable negligence. Intoxication, instead of culpable negligence, is required in the other. See State v. Bacon, supra. Each is a separate offense. For an identical case see People v. Trantham, 24 Cal. App. (2nd) 177, 74 P. (2nd) 851. See also Culpepper v. State, 44 Ga. App. 351, 161 S.E. 849.
We have considered the other assignments of error and find them without merit.
The judgment is affirmed.
TERRELL, CHAPMAN, BARNS and HOBSON, JJ., concur.
THOMAS, C.J., and SEBRING, J., agree to conclusion.
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Bautista v. State, 863 So. 2d 1180 (Fla. 2003)…ry of homicide offenses. See Houser v. State, 474 So. 2d 1193, 1196 (Fla.1985) (stating that the statutory element of the death of a victim places DUI manslaughter “squarely within the scope of this state’s regulation of homicide”); McHugh v. State, 160 Fla. 823, 36 So. 2d 786, 787 (1948) (stating that the “gist” of the DUI manslaughter offense is “unlawful homicide”). The first enactment of the DUI manslaughter statute in 1923 provided that violations of the statute were to “be punished as provided by exis…1 / 2
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Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963)…f nolo contendere. However, we have considered the contention of the defendant and hold that even if the defense of double jeopardy was not waived, there has been no double jeopardy in this case. The Florida Supreme Court, in McHugh v. State, 1948, 160 Fla. 823, 36 So. 2d 786, held, where two boys had been killed when a motor scooter on which they were riding was struck by an automobile, that an acquittal of the defendant automobile driver on the charge of killing one of the boys, based on culpable neglige…1 / 2
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State v. Lowe, 130 So. 2d 288 (Fla. 2d DCA 1961)…which there were three in the case at bar. This Court holds that where two or more persons are killed by a single criminal act, there are as many separate and distinct ■ offenses as there are persons killed by the unlawful act. See McHugh v. State, 160 Fla. 823, 36 So. 2d 786; State v. Bacon, 159 Fla. 54, 30 So. 2d 744, 172 A.L.R. 1050 and cases and authorities therein cited. One of the tests required in the case of McHugh v. State, supra, and the majority of other courts, is whether the evidence will be…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Bacom, 159 Fla. 54 (Fla. 1947)
- Solon Driggers v. State, 137 Fla. 182 (Fla. 1939)
- Hogan v. Burtner, 159 Fla. 54 (Fla. 1947)
- Allen v. Illinois, 308 U.S. 511 (U.S. 1939)
- Ex parte Martini, 308 U.S. 511 (U.S. 1939)