JOHN H. WALSINGHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Walsingham appeals his manslaughter conviction for the accidental shooting death of his five-year-old son. The Florida District Court of Appeal reversed the conviction, finding the evidence insufficient to support a conviction for culpable negligence manslaughter.
The court held that the evidence was insufficient to support a conviction for culpable negligence manslaughter. The defendant's actions did not constitute the degree of negligence required under Florida law, and evidence of alcohol consumption alone cannot transform an otherwise non-reckless act into a wanton and reckless one.
[1] Evidence of intoxication alone is insufficient to establish culpable negligence for manslaughter if the act would not otherwise be considered wanton and reckless.
[2] A conviction for manslaughter based on culpable negligence requires proof of a degree of negligence that goes beyond mere carelessness.
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Join FLexlaw to unlock all legal intelligence“Walsingham contends that the evidence was not sufficient to support a conviction for manslaughter on the theory of culpable negligence. We agree.”
States the court's agreement with the appellant's primary argument and the basis for reversal.
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Join FLexlaw to unlock all legal intelligenceOn January 28, 1972, Walsingham, who had been drinking to some degree, examined a .30-30 rifle in his bedroom after instructing his two children to re…
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Appellant, John H. Walsingham, appeals a judgment and sentence, after having been convicted of manslaughter in the fatal shooting of his son.
On January 28, 1972, about 8:00 P.M. Walsingham, who was under the influence of alcohol to some degree, went into his bedroom to look at a 30.30 rifle (which his wife had given him at Christmas-time) after first instructing his two small children to remain in the living room. Walsing-ham’s father entered the home prior to the shot, talked with his wife on the telephone, hugged his two grandchildren, and went back towards the bedroom. As he arrived at the door to the bedroom the gun went off while laying across Walsingham’s legs or in his hands. The shot went through the door and the wall and struck Wal-singham’s five year old son, killing the child immediately. The child had apparently followed the grandfather down the hallway, notwithstanding Walsingham’s warning that he remain in the living room.
Walsingham’s wife testified that although Walsingham had had the gun more than thirty days he had not shot it. The victim, Bobby, was the “apple of his fa*216ther’s eye.” Other witnesses, including the investigating officer, testified that Wal-singham became hysterical, was very emotional and sobbed the entire time the police and deputy sheriffs were around.
Walsingham contends that the evidence was not sufficient to support a conviction for manslaughter on the theory of culpable negligence. We agree.
Walsingham had definitely admonished his children to stay in the living room, and had no reason to believe that anyone was near or even, for that matter, that the gun was loaded or might go off. There was no evidence that he had his new gun out for any other reason than to become acquainted with it. He was in his own bedroom, not in a public place where there were other people. He had the gun across his knees or in his hands when it went off, and there is no evidence that he handled it so recklessly as to constitute culpable negligence. The son who got shot was, as we have adverted, the “apple of his eye.” The evidence falls far short of showing the degree of negligence necessary to constitute manslaughter under F.S. § 782.07, F.S.A., Cannon v. State, 1926, 91 Fla. 214, 107 So. 360; Miller v. State, Fla. 1954, 75 So.2d 312; Fowlkes v. State, Fla.App. 1958, 100 So.2d 826; Boyd v. State, Fla.App. 1960, 122 So.2d 632; Day v. State, Fla.App.1963, 154 So.2d 340; Getsie v. State, Fla.App. 1967, 193 So.2d 679.
There was evidence that Walsing-ham had been drinking or was under the influence of alcohol to some degree. Such evidence, while technically admissible, was not conclusive, and could not, in and of itself, make an act wanton and reckless that would not otherwise be so. Smith v. State, Fla. 1953, 65 So.2d 303; Fowlkes v. State, supra; Jackson v. State, Fla.App.1958, 100 So.2d 839; Day v. State, supra.
Taken in the light most favorable to the State, we are constrained to the view that the evidence was insufficient to support a charge of manslaughter on the theory of culpable negligence, Boyd v. State, supra. The judgment of conviction is reversed, and the case is remanded for a new trial before a new jury.
Reversed accordingly.
LILES, A. C. J., and HOBSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Manuel v. State, 344 So. 2d 1317 (Fla. 2d DCA 1977)…ed an auxiliary policeman who on the day after Christmas, in attempting to sit on his wife’s lap, acci-dently shot her with a gun which she had given him as a present the day before. Another “totally accidental” case was that of Walsingham v. State, 272 So. 2d 215 (Fla. 2d DCA 1973). There, the defendant was holding a rifle on his lap in his bedroom while examining it. The rifle accidentally discharged. The bullet passed through a door and a wall and eventually struck one of defendant’s children, killing him.…
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Penton v. State, 548 So. 2d 273 (Fla. 1st DCA 1989)…o. 2d 974 (Fla. 3d DCA 1983) (manslaughter conviction reversed upon showing that the victim was accidentally shot while defendant, whose life had been threatened, was retrieving loaded gun from the glove compartment of his car); Walsingham v. State, 272 So. 2d 215 (Fla. 2d DCA 1973) (evidence disclosing that defendant had admonished his children to stay in the living room while he went into the bedroom to examine his newly acquired rifle, which then accidentally discharged, resulting in a bullet passing throu…
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Sapp v. State, 913 So. 2d 1220 (Fla. 4th DCA 2005)…y denial of a claim of ineffective assistance of counsel was precluded where petitioner claimed that counsel misadvised him that consumption of alcohol alone was sufficient to convict him of manslaughter by culpable negligence); Walsingham v. State, 272 So. 2d 215 (Fla. 2d DCA 1973) (reversing defendant’s conviction for manslaughter by culpable negligence where there was no evidence that the defendant handled the gun recklessly in a place where he expected the presence of other people and the evidence that de…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cannon v. State, 107 So. 360 (Fla. 1926)
- Miller v. State, 75 So. 2d 312 (Fla. 1954)
- Smith v. State, 65 So. 2d 303 (Fla. 1953)
- Earnest Leon Jackson v. State, 100 So. 2d 839 (Fla. 1st DCA 1958)
- Boyd v. State, 122 So. 2d 632 (Fla. 1st DCA 1960)
- Getsie v. State, 193 So. 2d 679 (Fla. 4th DCA 1966)
- Daniels v. Lake Pleasant Land Co., Inc., 193 So. 2d 679 (Fla. 4th DCA 1967)
- DAY v. State, 154 So. 2d 340 (Fla. 2d DCA 1963)
- Maynard Grady Fowlkes v. State, 100 So. 2d 826 (Fla. 3d DCA 1957)
- Marie Drew and her husband v. Food Fair Stores OF Fla., Inc., 100 So. 2d 826 (Fla. 3d DCA 1958)