McHugh v. State, 36 So. 2d 786 (Fla. 1948). · Go Syfert
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McHugh v. State, 36 So. 2d 786 (Fla. 1948). Cases Citing This Book View Copy Cite
“great weight of authority”
49 citation events (4 in the last 25 years) across 11 distinct courts.
Strongest positive: State v. Rabe (wis, 1980-05-06)
Treatment trajectory · 1961 → 2026 · click a year to view as-of
1961 1993 2026
Top citers, strongest first. 5 distinct citers.
examined Cited as authority (verbatim quote) State v. Rabe (4×) also: Cited as authority (rule)
Wis. · 1980 · quote attribution · 2 verbatim quotes · confidence high
great weight of authority
examined Cited as authority (rule) Bautista v. State (3×) also: Cited "see"
Fla. · 2003 · confidence medium
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").
discussed Cited as authority (rule) State v. McFadden
Iowa · 1982 · confidence medium
See, e.g., State v. Miranda, 3 Ariz.App. 550, 557-58 , 416 P.2d 444, 451-52 (1966); McHugh v. State, 160 Fla. 823, 824 , 36 So.2d 786, 787 (1948), cert. denied, 336 U.S. 918 , 69 S.Ct. 640 , 93 L.Ed. 1081 (1949); State v. Lowe, 130 So.2d 288 (Fla.Dist.Ct.App.1961); People v. Allen, 368 Ill. 368, 379 , 14 N.E.2d 397, 405 (1937), appeal dismissed, 308 U.S. 511 , 60 S.Ct. 132 , 84 L.Ed. 436 (1939); Fleming v. Commonwealth, 284 Ky. 209, 210-11 , 144 S.W.2d 220, 221 (1940); Burton v. State, 226 Miss. 31, 45 , 79 So.2d 242, 249-50 (1955); State v. Whitley, 382 S.W.2d 665, 667 (Mo.1964); Jeppesen v. …
discussed Cited "see" Peel v. State (2×)
Fla. Dist. Ct. App. · 1963 · signal: see · confidence high
See McHugh v. State, 160 Fla. 823 , 36 So.2d 786 ; State v. Bacom, 159 Fla. 54 , 30 So.2d 744 , 172 A.L.R. 1050 and cases and authorities therein cited. * * * * * * "In the case at bar the evidence required to support the instant information for the manslaughter of Andrew *298 Gerald Smith through culpable negligence in the operation of an automobile would not have been sufficient to support the first information for the manslaughter of Frank Lawton through culpable negligence in the operation of an automobile without proof of an additional fact, and the evidence required to support the first …
discussed Cited "see" State v. Lowe (2×)
Fla. Dist. Ct. App. · 1961 · signal: see · confidence high
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.
Grady Lee McHugh
v.
State of Florida
Supreme Court of Florida.
Jul 23, 1948.
36 So. 2d 786
Cushman Woodard, for appellant. J. Tom Watson, Attorney General, and Ernest W. Welch, Assistant Attorney General, for appellee.
Adams, Terrell, Chapman, Barns, Hobson, Thomas, Sebring.
Cited by 20 opinions  |  Published
ADAMS, J.:

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.[*824] 860.01, 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.

[*825] One 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.