ALEXANDER SHARP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence was insufficient to sustain the conviction for manslaughter.
The appellant, proprietor of a bar, retrieved a shotgun during a fracas outside his establishment. The appellant testified the gun fired accidentally,…
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This is an appeal from a conviction of manslaughter, in a case tried without a jury below. The only question presented to us is whether or not the evidence in the case is sufficient to sustain the conviction.
The evidence established that the appellant was proprietor of a tavern known as the Hog Pen Bar. He was a large man, weighing approximately 240 pounds, and due to a previous leg injury he had difficulty in walking. On the night in question there were several people engaging in a fracas outside the bar, some on and some off the immediate premises. There was a good deal of scuffling, profanity and some hostility among them. The appellant first went out and warned the group to quiet down or leave. When this was unavailing he went back to the bar and came out with a shotgun.
The events that followed are not clear, and the testimony of the witnesses of the state is contradictory. Undoubtedly, one or two of the men in the group were armed and belligerent. It is also undisputed that the appellant’s gun was the fatal weapon, although there is no indication that he had any reason or cause to shoot this particular victim.
The appellant testified that he stumbled, ¿nd that the gun fired accidentally. ' There is no direct testimony or any other fact from which we can properly infer that he did otherwise, and after a close study of *207the record, we are forced to the conclusion that the state did not prove its case.
The state had the burden of proving to the exclusion of every reasonable doubt that the appellant was culpably negligent. It is on this point that this court finds from the record that the state did not meet the necessary proof, and we must reverse for a new trial.
Reversed and remanded.
ALLEN, C. J., and KANNER, J., concur.
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Hodge v. State, 315 So. 2d 507 (Fla. 1st DCA 1975)…d the elements of the offense of which the appellant was convicted. Establishment of even a strong probability of guilt is not sufficient. Kilbee v. State, 53 So. 2d 533 (Fla.1951). Leavine v. State, 109 Fla. 447, 147 So. 897 (1933). Sharp v. State, 120 So. 2d 206 (2nd D.C.A.1960). We are convinced after a careful review of the record that the State established no more than a probability that appellant was the one responsible for the death of the deceased. In fact, the State’s own evidence serves equally well…
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Manuel v. State, 344 So. 2d 1317 (Fla. 2d DCA 1977)…. 1st DCA 1972) (firecracker explosion caused defendant, holding a rifle, to jerk upward and discharge the rifle). Two other “accident” cases, a bit stronger on the facts, were Parker v. State, 318 So. 2d 502 (Fla. 1st DCA 1975) and Sharp v. State, 120 So. 2d 206 (Fla.2d DCA 1960). In Parker, the defendant was “fooling around” by waving his pistol around in the cab of a moving truck. At one point, he waved the pistol past the decedent’s head when it went off. The fact that the defendant had the hammer positi…
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Weinstein v. State, 269 So. 2d 70 (Fla. 1st DCA 1972)…ton v. State, 87 Fla. 65, 99 So. 244, 245 (1924), which held: “The circumstances relied upon by the state to contradict the defendant’s story are not so conclusive of the falsity of that story as to have warranted the conviction.” . Sharp v. State, 120 So. 2d 206 (2 Fla.App.1960) ; also see Neveils v. State, 145 So. 2d 883 (1 Fla.App.1962) ; and Getsie v. State, 193 So. 2d 679 (4 Fla.App.1967).…
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