THOMAS LEE DOLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Lee Dolan was convicted of manslaughter for the shooting death of Johnny Bakos. Although Dolan testified the shooting was accidental during a struggle over a gun, and his wife corroborated this account, the Florida Supreme Court affirmed the conviction, holding that Dolan's provocative actions set the stage for the fatal encounter and he could be held criminally responsible even without intent to kill.
A conviction of manslaughter can be sustained under these circumstances. Although the defendant had no intention of killing the victim, his provocative actions in displaying the gun, firing it, and initiating the confrontation set the stage for the fatal encounter, making him criminally responsible for the resulting death under Section 782.07, Fla.Stat.1953.
“The appellant's actions set the stage for the tragedy which ultimately and inevitably followed, and he must be held criminally responsible therefor, even though he had no intention of killing Bakos.”
The court's holding that manslaughter conviction can be sustained based on the defendant's provocative conduct, even absent intent to kill.
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Join FLexlaw to unlock all legal intelligenceLate at night, Dolan's girlfriend Adelaide returned to her trailer home with Johnny Bakos after spending the evening with him. Dolan, who was inside t…
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ROBERTS, Justice.
Appellant was found guilty of manslaughter and has appealed from the judgment of conviction.
At the trial, the appellant admitted that he shot and killed the deceased but testified that the shooting was accidental in the course of a struggle with the deceased over possession of the gun. His testimony in this respect was corroborated by his wife, Adelaide, the only eyewitness to the encounter. His contention on this appeal is that, in the face of such uncon-tradicted evidence, a conviction of manslaughter cannot be sustained. We do not agree.
The fatal altercation occurred late at night, when appellant’s wife (then his girl friend) returned to her trailer home, bringing with her one Johnny Bakos (soon to become “the deceased”), with whom she had spent the evening. The appellant was inside the trailer taking a nap and was clothed only in his underwear. He had a gun (a .357 caliber pistol), which he said he was going to use on a hunting trip the next day. Adelaide went inside the trailer, and Bakos stayed outside. After some conversation between the appellant and Adelaide, the appellant fired a shot into a corner of the trailer (just “showing off,” he said) and then went outside where Bakos was standing. He had the pistol in his right hand. He told Bakos that he was “in the wrong place with the wrong girl” and that he should leave. When Adelaide indicated that she was going to let Bakos have her car, the appellant objected strenuously and was given the keys by Bakos. Then, according to appellant, Bakos grabbed for the gun and they struggled over it, during the course of which Bakos was shot through the stomach and died.
We think that these circumstances were sufficient to sustain a conviction of manslaughter, within the meaning of Section 782.07, Fla.Stat.1953, F.S.A. The appellant’s actions set the stage for the tragedy which ultimately and inevitably followed, and he must be held criminally responsible therefor, even though he had no intention of killing Bakos. Cf. Williams v. State, 89 Fla. 475, 104 So. 782.
We have examined the other question presented here by appellant, and no reversible error has been found. Accordingly, the judgment appealed from should be and.it.is hereby .
Affirmed.
DREW, C. J., and THOMAS and O’CONNELL, JJ., concur.
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McBRIDE v. State, 191 So. 2d 70 (Fla. 1st DCA 1966)…be free from error and therefore affirm the judgment appealed.3 RAWLS, C. J., and WIGGINTON, and CARROLL, DONALD K., JJ., concur. . Driggers v. State (Fla.1964) 164 So. 2d 200; Davis v. State, (Fla.1956) 90 So. 2d 629. .Dolan v. State, (Fla.1956) 85 So. 2d 139. .Williams v. State, 89 Fla. 475, 104 So.782.…
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Hodge v. State, 315 So. 2d 507 (Fla. 1st DCA 1975)…supporting the defense and indicating innocence of the crime charged and of the lesser included offenses. The mere fact that there may have been a struggle for possession of the gun does not justify a conviction of manslaughter. In Dolan v. State, 85 So. 2d 139 (Fla.1956), a manslaughter conviction was sustained because the evidence clearly showed that the actions of the defendant in that case set the stage for the tragedy which [*510] ultimately and inevitably followed. The weight of evidence of the prese…
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Manuel v. State, 344 So. 2d 1317 (Fla. 2d DCA 1977)…ss and reckless manner.” The court stated that the defendant “set the stage for the tragedy which ultimately followed (an accidental shooting) even though he may have had [no] intention of killing the decedent.” 191 So. 2d at 71. See Dolan v. State, 85 So. 2d 139 (Fla.1956). It is submitted that the facts in the instant case, although clearly indicating more culpable conduct than the facts of the non-manslaughter “accident” cases, supra, are not sufficient to warrant a conviction for second degree murder. R…
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- Williams v. State, 89 Fla. 475 (Fla. 1925)