author: SUNDBERG, Justice. HATCHETT, Justice

text:
    Jack W. FILMON, Appellant, v. STATE of Florida, Appellee.
    No. 47369.
    Supreme Court of Florida.
    June 23, 1976.
    Rehearing Denied Sept. 24, 1976.

      David A. Demers, Law Offices of Robert W. Pope, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for ap-pellee.
   SUNDBERG, Justice.

This is an appeal from a conviction of manslaughter by culpable negligence in the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution, because the trial court passed upon the validity of Section 322.261, Florida Statutes, relative to blood alcohol tests for intoxication.

On the evening of August 31, 1973, the automobile driven by appellant Filmon collided with another vehicle at the intersection of 54th Avenue and 34th Street South, in the City of St. Petersburg, Florida. Fil-mon’s car had been heading north on 34th Street South while the other automobile had been going south on the same street and was attempting to make a left turn at the intersection of 54th Avenue South at the time of the collision. Subsequent to the accident six injured persons — four in Fil-mon’s car and two in the other vehicle— were dispatched- by ambulance to the Bay-front Medical Center in St. Petersburg. A police officer who had learned of the accident over his car radio proceeded to the hospital and caused blood alcohol tests to be administered to five individuals, the sixth (a passenger in the car which had been attempting a left turn) having died previous to arrival at the hospital. Later that night, the other occupant of the car struck by appellant’s auto also died as a result of injuries received in the accident.

At trial there was conflicting evidence adduced as to appellant’s drinking prior to the collision and as to the speed of his car shortly before the accident. Testimony as to the former issue ranged from “one or two beers” to an admission that the four people in his car had completed nearly an entire case of beer. At the hospital, the defendant’s blood alcohol level was tested at .165%. (The deceased driver had a blood alcohol level of .105%.) Taking the evidence most favorable to the State (as we must do for our purposes here), appellant was traveling between 70 and 90 miles per hour into a controlled intersection in a metropolitan area where the speed limit in the locality of the accident was 55 miles per hour. Traffic at the time and in the vicinity of the accident was described as “fairly heavy”. There was no evidence of bad weather or other hazardous road conditions. Although there was conflicting evidence on the point, a witness for the State testified that preceding the accident Filmon had driven erratically, changing lanes frequently and abruptly; that in the process of lane changes he had pulled behind a series of automobiles, applying his brakes sharply. The accident occurred at approximately 8:00 p. m. and darkness had fallen to such a degree that motorists were driving with their headlights illuminated. Although there is also a conflict on this point, viewed in a light most favorable to the State the evidence is that Filmon had an amber or orange light as he proceeded into the intersection where the accident occurred.

Appellant was charged in two Informa-tions with the deaths of the occupants of the automobile struck by the automobile driven by him. Each Information contained two counts — (i) causing the death of another by operating a motor vehicle with culpable negligence in violation of Section 782.07, Florida Statutes, and (ii) causing the death of another through the operation of a motor vehicle while intoxicated in violation of Subsection 860.01(2), Florida Statutes. Appellant moved to suppress several items of evidence including, inter alia, the results of the blood alcohol test performed on him at the hospital by personnel enumerated in Subsection 322.261(1), Florida Statutes 1973.

At the hearing before the trial judge the following facts were stipulated: (1) Mr. Fil-mon had not been arrested at the time the blood was drawn; (2) no conseht was obtained from him to secure the blood sample; (3) a blood sample was taken from everyone involved in the accident; (4) no search warrant was obtained to take the blood of anyone involved in the accident; (5) the appellant was never cited for driving while intoxicated; (6) the officer who directed that the blood be drawn from the people was not present at the scene of the accident; (7) the blood test was taken about an hour after the accident; (8) there were three people other than the appellant in the vehicle at the time of the collision. In addition to these stipulations, testimony was elicited from the officer who directed that the sample be taken. He stated that no one ever attempted to secure a sample for purposes of alcohol analysis through any method other than extraction of blood. Mr. Filmon was also conscious, he had to be physically restrained, he smelled of alcohol at the hospital, and he was belligerent with the nurses. The officer also stated that he did not know who was driving the vehicle at the time that he ordered that the blood test be performed.

Based on the foregoing stipulations and evidence, the court denied appellant’s motion and held that the procedure utilized to secure the blood test did not deny appellant equal protection of the law as secured by the Constitution of the United States and the Constitution of the State of Florida.

The State introduced in evidence at trial the results of the blood alcohol test; however, no testimony was introduced relating those results to any degree of intoxication. The court, therefore, directed a verdict as to the second count of each Information. The court denied a requested directed verdict on the first count of each Information. Appellant was convicted by the jury of the crime charged in the first count of each Information.

Apart from the constitutional question which vests this Court with jurisdiction, appellant raises two other points which merit our consideration, i. e., that the evidence was insufficient as a matter of law to support a finding of guilt of culpable negligence and that the trial court erred in refusing to give appellant’s requested jury instruction relating to execution of a left turn as prescribed by Section 316.122, Florida Statutes.

Concerning the sufficiency of the evidence, appellant asserts the proposition enunciated in Russ v. State, 140 Fla. 217, 191 So. 296 (1939), that excessive speed alone is not sufficient to support a conviction under the manslaughter by culpable negligence statute. It should be noted that in the Russ case, supra, there was no evidence of consumption of alcohol by the defendant. This question concerning the evidence necessary to sustain a conviction under Section 782.07, Florida Statutes, and its predecessors, has been considered by this Court and the District Courts of Appeal of Florida on numerous occasions. Different results have obtained depending on the facts of each particular case. See Cannon v. State, 91 Fla. 214, 107 So. 360 (1926); Preston v. State, 56 So.2d 543 (Fla.1952); Smith v. State, 65 So.2d 303 (Fla.1953); Miller v. State, 75 So.2d 312 (Fla.1954); Hunt v. State, 87 So.2d 584 (Fla.1956); Johnson v. State, 92 So.2d 651 (Fla.1957); and Jackson v. State, 100 So.2d 839 (Fla. App.1st, 1958).

The recent case of Peel v. State, 291 So.2d 226 (Fla.App.1st, 1974), is relied upon heavily by appellant to support his assertion that the evidence in the case at bar was insufficient to support the convictions. Briefly stated, the facts in the Peel case disclose that the defendant was traveling at 40 to 50 miles per hour as he approached an intersection controlled by a stop sign; he did not stop or slow down upon entering the intersection; and as he made a right turn at the intersection he collided with the decedents’ car which was traveling on the intersecting road at right angles to the defendant. Although there was evidence that the defendant in the Peel case had been consuming alcohol there was no evidence in the record that he was exceeding the speed limit. The District Court of Appeal concluded that the conduct of the defendant did not constitute that high degree of negligence required for conviction of manslaughter and, relying upon Preston v. State, supra, determined that the additional factor of evidence of intoxication on the part of the defendant was not sufficient to convert the defendant’s conduct into the category of culpable negligence. As in the case at bar, the defendant in the Peel case was charged with two intoxication counts as well as two culpable negligence counts, but he was acquitted by the jury on the two intoxication counts.

A clear statement of the conduct necessary to constitute culpable negligence under the statute is enunciated by Mr. Justice Drew in Miller v. State, supra, at 313, 314, where it is stated:

“The culpable conduct necessary to sustain proof of manslaughter under Section 782.07, supra, ‘must be of “a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.” ’ ”

However, in applying the foregoing standard every case of manslaughter by culpable negligence must be determined upon the facts and circumstance peculiar to that case. Scarborough v. State, 188 So.2d 877 (Fla.App.2nd, 1966). It cannot be controverted that Russ v. State, supra, and its progeny, cited heretofore and concluding with Peel v. State, supra, stand for the proposition that excessive speed alone, or, in the case of Peel, running a stop sign at an intersection, coupled with evidence of intoxication, is not sufficient to constitute culpable negligence under our criminal statute. However, are we presented in the case at bar merely with evidence of speed and intoxication? An examination of the evidence in a light most favorable to the State discloses that the appellant:

(1) operated his vehicle into the intersection at a speed of from 70 to 90 miles per hour;
(2) did not reduce his speed as he entered the intersection located in a metropolitan area;
(3) entered the intersection at the time the traffic light was amber or orange for traffic proceeding in the direction in which he was proceeding;
(4) alternately changed from one lane of traffic to another, stopping abruptly to the rear of other vehicles as he changed lanes while approaching the intersection; and
(5) took these actions during that time of day when darkness was falling, with consequent impairment of visibility.

Coupled with the foregoing conduct, the jury had before it evidence that the appellant had imbibed significantly immediately preceding the tragic incident. Although the trial court ruled that the evidence was not sufficient to support the charge that appellant was intoxicated for purposes of conviction under Subsection 860.01(2), Florida Statutes, (presumably because the test result was not related to any degree of intoxication), it could be considered by the jury along with the above-stated acts of negligence. It is properly to be considered not as a circumstance which renders acts wanton and reckless which are not otherwise so, but upon the theory that persons under the influence of alcohol to any considerable degree, though not actually intoxicated, are more apt to be heedless, reckless, and daring than when free from such influence. See Smith v. State and Jackson v. State, supra. The totality of the circumstances surrounding the incident, we believe, was sufficient to take the case to the jury for application by it of the standard enunciated in Miller v. State, supra, to such circumstances.

Appellant next asserts the unconstitutionality of Subsection 322.261(1), Florida Statutes 1973. His assault is twofold: (i) It violates the Fourth Amendment because it does not require arrest prior to administration of the blood alcohol test; and (ii) it violates the equal protection clauses of the Federal and State Constitutions by treating unconscious persons differently from conscious individuals, who have the option of withholding their consent to administration of the test. Thus it is argued that the statute authorizes both discriminatory enforcement of statutory penalties and unreasonable searches and seizures.

In State v. Mitchell, 245 So.2d 618 (Fla.1971), this Court held squarely that a prior arrest was not a constitutional prerequisite of taking a blood alcohol sample. Authority for this proposition was found in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Mitchell also alluded to the equal protection issue in the following manner:

“We are of the opinion that the Legislature foresaw the difficulty and inutility of attempting to arrest an unconscious person or one in shock or on the operating table of a hospital. (Footnote omitted) It should be pointed out that the blood test, as provided for use in these particular situations, can exonerate the person tested. It will often be to the benefit of the unconscious or otherwise incapacitated person to be tested as soon after the accident as possible.”

On facts similar to those found in the case at bar, Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), expressly approved the withdrawal of blood without conscious consent from an automobile accident victim later charged with involuntary manslaughter. It was contended on behalf of petitioner in that case that this procedure violated Fourth and Fifth Amendment protections guaranteed against state action by the Fourteenth Amendment. We believe the relevant portion of Brei-thaupt still to be controlling.

Appellant contends that the holding in Schmerber, supra, was clarified in U. S. v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), to require a lawful arrest as a condition precedent to administration of a blood alcohol test. We conclude that Dioni-sio is ambiguous in this regard and reject appellant’s interpretation of that case. Accordingly, we reaffirm our holding in Mitchell, supra, that Subsection 322.261(1), Florida Statutes 1973, does not violate the Fourth Amendment to the Constitution of the United States and hold, additionally, that it does not violate the Equal Protection clauses of the Federal and Florida Constitutions. We are supported in this view by a recent decision of the Supreme Court of New Mexico. See State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (1973).

We reject appellant’s assertion that the conduct of the police officer at the hospital where the five remaining accident victims were present constituted a dragnet technique because he had all five tested. The officer had reasonable cause to believe that one or more of that limited group of five individuals had been driving a motor vehicle within the state while under the influence of alcoholic beverages.

The remaining point for our consideration involves refusal of the trial court to instruct the jury concerning the provisions of Section 316.122, Florida Statutes, dealing with execution of a left turn by a motorist. Appellant submits that the trial judge erred in failing to give the requested instruction on the premise that the jury should have considered the conduct of the driver of the vehicle in which the decedents were riding as bearing upon proximate causation. Essentially, his argument is that with the aid of such instruction the jury could have concluded that appellant’s conduct was not the proximate cause of the decedents’ deaths. The error in appellant’s argument is that the conduct of the decedents or the decedents’ driver could only be controlling if it were the sole proximate cause of the accident. This is borne out in the Peel case, supra, wherein it was held to be error for the trial judge to refuse to give a tendered instruction on Section 317.-301(l)(b), Florida Statutes, which provides that no vehicle shall be driven to the left side of the roadway when approaching within 100 feet of or traversing any intersection. As pointed out by the court, the instruction should have been given in that case because, had the jury believed that the defendant had stopped before entering the intersection and then turned right but found decedents’ automobile in the south lane of the thoroughfare into which he was turning, there would have been no negligence on the part of the defendant, and the sole cause of the accident would have been the decedents’ negligence in running through the intersection on the wrong side of the road. In the instant case, there is no view of the evidence upon which the jury could have reasonably concluded that the decedents’ asserted act of failing to yield the right-of-way was the sole proximate cause of the accident. Appellant’s additional contention that the conduct of the decedent somehow bears upon the wantonness or recklessness of his acts is not persuasive.’ The acts of the decedent can neither add to nor detract from the quality of appellant’s conduct. Consequently, we find no error in the trial court’s failure to grant the requested instructions.

The judgments of conviction are affirmed.

ROBERTS, Acting C. J., and BOYD and ENGLAND, JJ., concur.

HATCHETT, J., dissents with an opinion.

ADKINS, J., dissents and concurs with HATCHETT, J.

HATCHETT, Justice

(dissenting).

I respectfully dissent from the affirmance of the judgment of conviction on account of the admission into evidence at trial, over objection, of the results of a test performed on blood extracted from appellant at the hospital. The blood sample was obtained in violation of the Fourth Amendment to the United States Constitution, in my opinion, and all evidence derived from it should have been excluded.

The search and seizure question is properly before us. Defense counsel filed a motion to suppress the blood test results, pursuant to Rule 3.190(h), RCrP, and subsequently expanded the statement of reasons for suppression in an amended motion to suppress. On the day of trial, but before trial began, these motions were heard. No longer is there any question that blood testing procedures of the kind employed in the present case “plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of [the Fourth] Amendment.” Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908, 918 (1966).

No warrant authorized extraction of blood from appellant’s veins. Since the decisions in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the States have been obliged “to follow all the ins and outs" Coolidge v. New Hampshire, 403 U.S. 443, 490, 91 S.Ct. 2022, 2050, 29 L.Ed.2d 564, 597 (1971) (Harlan, J., concurring) of the United States Supreme Court’s Fourth Amendment cases. With a few well-recognized exceptions, which have been “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514, 1519 (1958), the “most basic constitutional rule in this area,” Coolidge v. New Hampshire, 403 U.S. at 454, 91 S.Ct. at 2032, 29 L.Ed.2d at 576, is the warrant requirement, which has both procedural and substantive aspects. Absent prior judicial authorization for searches and seizures, law enforcement officers must be able to justify their conduct after the fact, in order to render its fruits- admissible at trial, over objection. Because the policeman who ordered the extraction of appellant’s blood did not act pursuant to judicial warrant, the prosecution had the burden to show at the suppression hearing that the challenged evidence had been obtained lawfully.

All an accused need do is make an “initial showing,” State v. Lyons, 293 So.2d 391, 393 (Fla.App.2nd, 1974) of standing to challenge the legality of a search, and the “ultimate burden of proof as to the validity of a warrantless search is on the State.” Mann v. State, 292 So.2d 432, 433 (Fla.App.2nd, 1974). Where the prosecution proposes to introduce evidence extracted from the body of the accused, in order to prove its case, the accused necessarily has standing to raise the question of the legality of the extraction. Schmerber v. California, supra; Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957); State v. Mitchell, 245 So.2d 618 (Fla.1971); Wilson v. State, 225 So.2d 321 (Fla.1969). See generally Note, Constitutional Limitations on the Taking of Body Evidence, 78 Yale L.J. 1074 (1969). Here, the parties stipulated that no warrant authorized the seizure of the blood which was taken from appellant Filmon, among other persons, at the direction of a policeman.

In' keeping with these principles, the prosecution undertook to prove facts at the suppression hearing to justify the warrant-less search and seizure in the present case. The majority has set forth the various stipulations entered into at the suppression hearing, and has summarized the evidence adduced there. Ante, pp. 588-589. Officer Gates, the only witness produced by the State, testified that he had not been at the accident scene, but heard about the collision over the radio and drove to the hospital emergency room, where he was evidently the only policeman present when the ambulances arrived. Officer Gates’ testimony also establishes that appellant was “conscious . . . had to be physically restrained . . . smelled of alcohol . and . . . was belligerent,” ante, p. 588, when blood was taken from him at Officer Gates’ direction. In short, the State adequately demonstrated a reasonable basis on which to believe that the appellant had been drinking. Responding to questions from the prosecutor, Officer Gates further testified:

Q Did you authorize any other blood samples to be taken?
A Yes. I had blood samples taken of all the victims who were still living at the time.
Q Is there any reason that you had all these blood samples at that time and that place?
A Yes, there is. It was my contention that due to the seriousness of the accident, the investigating officer would not be able to arrive at the hospital for unknown number of hours after the victims arrived.

There was no evidence that Officer Gates made any effort to determine who had been driving before he ordered the blood samples taken. Testimony at trial showed that Walter Gibson, one of the other accident victims from whom blood was taken, died later the same night. At the suppression hearing, the total number of accident victims was not alluded to. The majority relies principally on Breithaupt v. Abram, supra, and State v. Mitchell, supra, in upholding the denial of the motion to suppress. I subscribe to the proposition articulated in State v. Clyde, 299 So.2d 136 (Fla. App.2nd, 1974) that “an affirmance of the ruling of the trial court is appropriate if the trial judge’s ruling”, at 137, can be sustained on any basis consistent with the evidence adduced, but I believe the State has failed to prove facts that can justify a warrantless search in the present case, on any theory.

Aside from the procedural consequences of a search without warrant, there is a substantive warrant requirement which stands as an absolute bar to the use of evidence taken in certain warrantless searches. Warrants are generally necessary for searches of private dwellings both as a matter of Florida law, see Fla.Stat. § 933.18 (1975), Cooper v. State, 106 Fla. 254, 143 So. 217 (1932); Pesce v. State, 288 So.2d 264 (Fla.App.4th, 1974); Cells v. State, 249 So.2d 509 (Fla.App.2nd, 1971); Panzavecchia v. State, 201 So.2d 762 (Fla. App.3rd, 1967), and as a federal constitutional matter. Coolidge v. New Hampshire, supra; Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969); Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856, 859 (1964). Clearly “no less could be required where intrusions into the human body are concerned.” Schmerber v. California, 384 U.S. at 770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919. The exceptions to the requirement, that searches of persons and dwellings be judicially authorized beforehand, fall under four general headings: (1) stop and frisk searches, (2) consensual searches, (3) searches incident to a lawful arrest, and (4) searches where probable cause to search is coupled with exigent circumstances. Just as the fact that a search involves an intrusion into an individual’s body, instead of merely into his home, gives no occasion for weakening the warrant requirement, so, too, this is no occasion for strengthening the exceptions to the general rule.

The extraction of blood from appellant for chemical analysis was clearly not a “stop and frisk” and nobody suggests otherwise. The State does not seek to justify taking blood from appellant on the basis of his consent, express or implied. The prosecutor stipulated, at the suppression hearing, “that no consent was obtained from the defendant to secure the blood sample.”

Nor has the State sought to avail itself of the exception for searches incident to lawful arrest.' The prosecutor stipulated that no arrest was effected. In the great majority of states, inquiry would end here because the lack of a formal arrest renders inadmissible at trial any blood test results based on blood taken from a citizen who has not given consent. E. g., People v. Superior Court, 6 Cal.3d 757, 100 Cal.Rptr. 281, 493 P.2d 1145 (1972) (taking of a blood sample in a medically approved manner but without consent of the subject violative of right to be secure from unreasonable searches and seizures where there is probable cause to arrest but the taking of the sample is not pursuant to search warrant or incident to lawful arrest); Roumbanis v. Superior Court, 29 Cal.App.3d 542, 105 Cal.Rptr. 702 (1st Dist.1972) (reh. den. 1973); State v. Towry, 26 Conn.Sup. 35, 210 A.2d 455 (1965); State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973); State v. Baker, 184 Neb. 724, 171 N.W.2d 798 (1969); State v. Richerson, 87 N.M. 437, 535 P.2d 644 (Ct.App.) cert. den. 87 N.M. 450, 535 P.2d 657 (1975) (taking blood sample violated Fourth Amendment and New Mexico constitution where subject had not been arrested); People v. Butor, 75 Misc.2d 558, 348 N.Y.S.2d 89 (Dutchess Cty. 1973); People v. Young, supra; Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970) (blood test on injured driver suppressed “[although the altruistic motives of the arresting officer in delaying the arrest are to be admired”); Commonwealth v. Wolpert, 224 Pa.Super. 361, 308 A.2d 120 (1973); Holland v. Parker, 354 F.Supp. 196 (D.S.D.1973) (three judge district court declared South Dakota law unconstitutional for want of requirement that lawful arrest precede nonconsensual extraction of blood); State v. Cruz, 21 Utah 2d 406, 446 P.2d 307 (1968); State v. Ball, 123 Vt. 26, 179 A.2d 466 (1962); State v. Wetherell, 82 Wash.2d 865, 514 P.2d 1069 (1973); State v. Kroening, 274 Wis. 266, 79 N.W.2d 810 (1956) reh. den. (1957) (decision grounded on state constitutional prohibition against unreasonable searches and seizures). Some decisions requiring that extraction of blood be incident to lawful arrest rest solely on pértinent statutory provisions, e. g. State v. Cruz, supra, and others are based squarely on the Fourth Amendment as made applicable to the States by the Fourteenth Amendment. E. g,, People v. Superior Court, supra; People v. Young, supra; Commonwealth v. Murray, supra.

In still other cases, decision is grounded alternatively on the statute involved and on the Fourth Amendment. In State v. Wetherell, supra, for example, the Supreme Court of Washington said:

Supportive of the statutory arrest requirement, and undoubtedly a reason therefor, is the holding of the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
******
Both before and after Schmerber, other courts reached substantially similar conclusions with respect to the interpretation and application of implied consent statutes. Almost without exception, each court considering the matter held a lawful arrest to be the essential introductory step to implied consent provisions. Results adduced from sobriety tests not preceded by such an arrest or by actual consent were condemned and held to be inadmissible evidence. Schutt v. Macduff, 205 Misc. 43, 127 N.Y.S.2d 116 (1954); Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961); State v. Kroening, 274 Wis. 266, 79 N.W.2d 810, 80 N.W.2d 816 (1956); State v. Auger, 124 Vt. 50, 196 A.2d 562 (1963); State v. Towry, 26 Conn.Sup. 35, 210 A.2d 455 (1965); State v. Cruz, 21 Utah 2d 406, 446 P.2d 307 (1968); Opinion of the Justices, 255 A.2d 643 (Me.1969); Mitchell v. State, 227 So.2d 728 (Fla.App.1969); Holland v. Parker, 354 F.Supp. 196 (S.D.1973). 514 P.2d at 1072-73 (footnote omitted).

In-Schmerber, the Court said “that the attempt to secure evidence of blood-alcohol content . . . was an appropriate incident to [Schmerber’s] arrest.” 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920. There is also broad agreement among the commentators to the effect that requiring “that the police make a lawful arrest prior to taking the suspect into custody for a blood test should be the minimal constitutional standard under the fourth and fourteenth amendments.” Note, Arrest Requirement for Administering Blood Tests, 1971 Duke L.J. 601, 617 (1971); Comment, Florida’s “Implied Consent” Statute: Chemical Tests for Intoxicated Drivers, 22 Miami L.Rev. 698, 702 (1968); Comment, Blood Alcohol Tests and the Fourth and Fifth Amendments, 17 Drake L.Rev. 231 (1968).

The majority ignores the great wealth of authority which supports the view that arrest is a necessary precondition to warrant-less, nonconsensual extraction of blood. I find the overwhelming agreement of so many courts highly persuasive and I cannot subscribe to the majority view that blood may be extracted from a citizen’s veins, not only in the absence of formal arrest but also in the absence even of probable cause for arrest. In the nature of things, taking a blood sample from appellant “depended antecedently upon” a seizure of his person, although there is concededly a difference between formal arrest and investigatory detention. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). Cf. Sheff v. State, 329 So.2d 270 (Fla.1976); Clark v. State, 322 So.2d 635 (Fla.App.3rd, 1975). If the rationale for search incident to arrest has “little applicability with respect to searches involving intrusions beyond the body’s surface,” Schmerber v. California, 384 U.S. at 769-770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919, cf. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search incident to arrest should be limited to arrestee’s “person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him” 395 U.S. at 768, 89 S.Ct. at 2043, 23 L.Ed.2d at 697), there is still every reason to require probable cause for arrest as a prerequisite for warrantless blood searches.

Because the prosecution stipulated to the absence both of consent and of a lawful arrest, the only conceivable justification for the warrantless seizure in the present case is probable cause to search together with exigent circumstances. Biologically and as a matter of constitutional law, exigent circumstances were present here. The danger that delay necessary to obtain a warrant might occasion the loss of the evidence is quite plain where the evidence is alcohol which the body is constantly eliminating from the bloodstream. Here as in Schmer-ber “time had to be taken to bring the accused to a hospital and to investigate the scene of the accident [so that] there was no time to seek out a magistrate and secure a warrant.” 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920.

Probable cause to search is synonymous with probable cause for arrest, in a case like the present one. Where the evidence sought is alcohol in a driver’s blood, probable cause to search means probable cause to believe that a person has been driving while under the influence of alcohol. These are the same elements which give probable cause to arrest for driving while under the influence of alcohol. Similarly, in Schmer-ber, “the facts which established probable cause to arrest . . . also suggested the required relevance and likely success of [i. e., probable cause for] a test of . blood for alcohol.” 384 U.S. at 770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919. Especially after the decision in Cupp v. Murphy, supra, there is room for the view that a blood sample may be taken without consent from a person as to whom there is probable cause for arrest, even in the absence of an arrest. The search and seizure in this case are nonetheless unreasonable.

The prosecution failed to demonstrate probable cause at the suppression hearing, whether for the arrest of appellant or for the search of his veins. His drunkenness was immaterial, unless he was driving. Sears v. State, 819 So.2d 69 (Fla.App.2nd, 1975) The “standards applicable to the factual basis supporting the officer’s probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate’s assessment,” Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306, 312 (1971), when passing on an application for a warrant. The proof offered did not meet those standards. The majority concludes that Officer Gates “had reasonable cause to believe that one or more of that limited group of five individuals had been driving a motor vehicle within the state while under the influence of alcoholic beverages.” Ante, p. 591. But this conclusion is not predicated on the evidence adduced at the suppression hearing. The prosecution never put into evidence at the hearing any proof as to how many people were in the cars involved in the accident, or how many injured persons were in the emergency room.

Even if the testimony adduced at trial is considered on this question, as the majority evidently proposes, the search and seizure are not shown to be reasonable. Officer Gates knew, when he directed the blood samples to be taken that “at least one death had resulted from the accident.” (R 35) It developed at trial that two automobiles were involved in the collision, and that a second person died later the night of the accident. Since the person who was already dead might have been driving one of the cars, Officer Gates presumably knew, when he directed the extraction of appellant’s blood, that the chances that appellant was a driver were no better than two in six. (If any of the occupants of either car had escaped injury, the odds would not have been that good.) In this respect, the present case resembles Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) where three men were arrested for rape on the victim’s assertion that one of them was guilty of the crime. Mr. Justice Frankfurter wrote for the Court, 354 U.S. at 456, 77 S.Ct. at 1360, 1 L.Ed.2d at 1484:

Presumably, whomever the police arrest they must arrest on “probable cause.” It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on “probable cause.”

Against the facts in Mallory, the clear implication of this language is that probable cause to arrest means something more than a one in three (or two in six) chance of success.

But there is no need to invoke any such glib formula in condemning the search and seizure in this case as unreasonable. Officer Gates did not make the slightest effort to ascertain who was driving. Of course, there is no requirement that the officer who investigates the accident scene accompany accident victims to the hospital, but the unthinking, overzealous approach this case exemplifies is inconsistent with the requirement that searches and seizures be reasonable. Cf. State v. Neri, 290 So.2d 500 (Fla.App.2nd, 1974). Courts do not do their duty when they countenance undiscriminating official intrusions into citizens’ bodies, in a wholesale fashion. What kept Officer Gates from asking the simple question, “Who was driving?” instead of ordering that blood tests be done en masse on everybody in sight? See People v. Smith, 175 Colo. 212, 486 P.2d 8 (1971) (en banc) (statements taken from four occupants of automobile indicated that the accused was driving and therefore gave probable cause for his arrest).

It is well to keep in mind the words of Mr. Justice Bradley, which have been quoted with approval many times since:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for • the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746, 752 (1874). This case is free from the gross abuses present in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), but resembles very closely Sears v. State, supra, State v. Neri, supra and Russo v. State, 270 So.2d 428 (Fla.App.4th, 1972).

ADKINS, J., concurs.

      . I agree with the majority that the equal protection claim lacks merit. There is a substantial question whether this appellant has standing to raise it, in any event. He argues that unconscious persons are denied equal protection of the laws because they are conclusively presumed to have consented to blood tests, while persons who are conscious may refuse the tests. But the legal capacity to refuse is very logically related to the physical ability to do so. For another possible “rational basis”' for distinguishing between conscious and unconscious persons in this context, see Comment, 79 Harv.L.Rev. 677, 680 (1966). The uncontroverted evidence at the suppression hearing, moreover, was to the effect that appellant Filmon was conscious, when his blood was taken.

      . The decision in the Breithaupt case antedates Mapp v. Ohio, supra. In deciding Breithaupt, the “Court did not decide whether the extraction of blood . was unlawful, but rejected the [search and seizure] claim on the basis of Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.” Schmerber v. California, 384 U.S. at 766, 86 S.Ct. 1833, 16 L.Ed.2d at 917. At the time Breithaupt was decided, the exclusionary rule was not applicable to the States, under Wolf v. Colorado, supra. As to appellant Filmon’s Fourth Amendment claim, therefore, the Breithaupt case has been implicitly overruled, and is no longer apposite. E. g. People v. Young, 42 Misc.2d 540, 248 N.Y.S.2d 287 (Westchester Cty. 1964) (“If the Breithaupt facts were today to be represented to the Supreme Court, we think it reasonable to anticipate, in the light of Mapp v. Ohio, that the Court would . . [find] an illegal search and seizure” 248 N.Y.S.2d at 297)

      . As to any point of state law decided in State v. Mitchell, supra, I consider myself bound because “the principle of stare decisis should apply to such recent precedent. Otherwise we would introduce uncertainty, instability and confusion into the law not only on this particular question but generally.” State v. Terry, 336 So.2d 65 at 69 (Fla., 1976) (Hatchett, J., concurring). But the supremacy clause of the United States Constitution must be given effect, even when to do so requires the overruling of some decision by this Court as to a point of federal constitutional law. Like the Supreme Court of Kansas, I “would differ with the Florida court’s reading of Schmerber [as explicated in State v. Mitchell, supra.]" State v. Brunner, 211 Kan. 596, 507 P.2d 233, 240 (1973).
      Since the Mitchell case, the legislature has amended Fla.Stat. § 322.261 (1975) by adopting Fla.Laws, ch. 74-384 § 2, now codified as Fla. Stat. § 322.261(l)(b) (1975). The new subsection treats prearrest breath tests, providing that “a law enforcement officer shall obtain the written consent” of the driver beforehand and even then that the results of such prearrest tests “shall not be admissible into evidence in any civil or criminal proceeding.” Fla.Stat. § 322.261(l)(b)(l) (1975). It may be worth noting in passing that the District Courts of Appeal considering the question under Section 322.261, before Mitchell was decided, unanimously held that a lawful arrest was a necessary antecedent to a blood test because otherwise the statute “would probably be heid unconstitutional.” Shores v. State, 233 So.2d 434, 436 (Fla.App.1st, 1970); Mitchell v. State, 227 So.2d 728 (Fla.App.2nd, 1969). I am compelled to dissent in the present case, however, not on the basis of Fla.Stat. § 322.261 (1975), but for the reason that the unwarranted taking of appellant’s blood has not been shown to be reasonable within the meaning of the Fourth Amendment, in my judgment.

      . When he denied the motion to suppress, the trial judge gave his reasons, as follows:
      Now the Court does not feel that the Dioni-sio case set forth a standard and a guideline that there must be an arrest which is required before the blood may be taken. The Court feels under the circumstances of this • case that the taking of the blood was relevant. It was a serious accident with multiple people injured, one — and one who was dead on arrival at the hospital.
      From the testimony that has been presented to the court, there was a likely success of a test of the petitioner’s blood for alcohol by reason of the officer’s testimony that he— two items: Number one, that he smelled it upon him; number two, that he was belligerent with people that were trying to treat him. The Court does not feel that it is reasonable to have supposedly the officer on the scene that can identify the drivers of the respective vehicles accompany those individuals to the hospital in order to have a proper blood alcohol, blood-alcohol test made. That just is not reasonable taking the entire circumstances of these types of incidents.

      . A similar thought was expressed by the Wisconsin Supreme Court discussing Wisconsin search and seizure provisions in State v. Kroening, 274 Wis. 266, 79 N.W.2d 810, 815 (1956) reh. den. (1957): .
      It is thoroughly recognized that property on the person is not to be seized by zealous officers who have no search warrant and who have not made a valid arrest, [citation omitted] We do not understand that the constitutional provision in question forbids officers to go through one’s pockets but permits them to go through his veins.

      . Several cases explicitly reject the view that probable cause for arrest will suffice, in the absence of formal arrest. E. g., Roumbanis v. Superior Court, supra; Commonwealth v. Murray, supra; Holland v. Parker, supra.


source: Caselaw Access Project

author: MeCORD, Judge.

license: Public Domain

text:
    CERRO CORPORATION, a Delaware Corporation, et al., Appellants, v. DEPARTMENT OF REVENUE of the State of Florida, Appellee.
    No. AA-21.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1976.
    Shepard D. Johnston, Richard H. Hunt, Jr., and Paul M. Stokes, of Smathers &. Thompson, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and David M. Hudson, Asst. Atty. Gen., for appellee.
   MeCORD, Judge.

This is an appeal from an order of the circuit court dismissing Cerro Corporation’s complaint for judicial review of action of the Department of Revenue and the assessment made against it by the Department for corporate income tax. The entire proceeding was handled under Chapter 214, Fla.Stat. (1975), and Cerro sought judicial review in the Circuit Court of Leon County pursuant to § 214.25, Fla.Stat. (1975). The circuit court ruled with the contention of the Department of Revenue that review is only before this court under the new Administrative Procedure Act [Chapter 120, Fla.Stat. (1975)], referred to as the new APA; that said § 214.25 was repealed by the new APA. All hearings before the Department in this case were held prior to January 1, 1975, the effective date of the new APA, but the order of the Department was not entered until after the effective date. The hearings held before the Department of Revenue under Chapter 214 were not reported since review under § 214.25 is specifically required to be de novo.

§ 120.72(2), Fla.Stat. (1975), provides that “all administrative adjudicative proceedings begun prior to January 1, 1975, shall be continued to a conclusion under the provisions of the Florida Statutes, 1973, except that administrative adjudicatory proceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.” The Department of Revenue contends that since it was not an agency under the old APA, its proceedings were not administrative adjudicative proceedings and thus are not to be continued to a conclusion under the provisions of the Florida Statutes, 1973. Cerro contends that the fact that the old APA defined the Department of Revenue as not being an agency under that Act does not affect the requirement of the new Act that the action be continued to a conclusion under the 1973 statutes. It is our view that continuing the action to a conclusion covers the administrative proceedings as well as the review proceedings. Thus, § 120.72(2), Fla.Stat. (1975), applies to this proceeding and review is before the circuit court. We do not consider that the exclusion of the Department of Revenue from the old APA would have the effect of making this provision inapplicable to its proceedings. The provision in question is a part of the new APA and the Department is included as an administrative agency under the new APA. Its proceedings under the new APA are administrative adjudicative proceedings.

It was not contemplated by the legislature that this court would review the actions of an agency without a record. The new APA makes full provision for adversary hearings and a record for review. There is no record in the present case, but such is no obstacle to the circuit court. Under § 214.25, Fla.Stat. (1975), as aforesaid, the review will be a de novo proceeding where a record will be made which will be subject to this court’s review.

On the day prior to oral argument in this case, Cerro filed a motion to remand the cause to the Circuit Court for consideration of Chapter 76-207, Laws of Florida, which became effective on June 21, 1976. That law amends § 120.72(2), Fla.Stat. (1975). Such amended statute states as follows:

“(a) All administrative adjudicative proceedings conducted pursuant to any provision of the Florida Statutes which were begun prior to January 1, 1975, shall be continued to a conclusion, including judicial review, under the provisions of the Florida Statutes, 1973, except that administrative adjudicatory proceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.
(b) If any action seeking judicial review of an administrative adjudicative proceeding begun prior to January 1, 1975, has been dismissed or otherwise disposed of on the ground that the provisions of the Florida Statutes, 1973, providing for judicial review were repealed by chapter 74-310, Laws of Florida, such action shall be reinstated by order of the court dismissing such actions upon the filing of a petition by the dismissed party at any time during the 60-day period immediately following the effective date of this act.” (The portions emphasized are the new provisions in the Act.)

The statute as amended coincides with our construction of the statute as it existed prior to the amendment when we consider it in pari materia with § 214.25, Fla.Stat. (1975). It is clear that the circuit court has jurisdiction to review the action of the Department of Revenue in this cause.

Reversed and remanded.

RAWLS, Acting Chief Judge and MILLS, J., concur.


author: WALDEN, Judge.

text:
    RELIANCE INSURANCE COMPANIES, Appellant, v. Thomas L. KILBY et al., Appellees.
    No. 75-1613.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Rehearing Denied Sept. 9, 1976.

      J. Richard Caldwell, Jr., of Pitts, Eu-banks, Ross & Rumberger, Orlando, for appellant.
    James B. Byrne, Jr., Altamonte Springs, for appellees.
   WALDEN, Judge.

We affirm an award of attorney fees.

The agreed appellate issue is:

Whether the trial court erred in awarding Kilby attorney’s fees in a proceeding for equitable distribution under Fla.Stat. § 627.736.

Appellant, Reliance Insurance Company, paid $778.86 as personal injury protection benefits to its insured, Thomas L. Kilby. The Kilby personal injury suit was settled for $5,700, whereupon Reliance filed a Notice of Lien on account of the PIP benefits paid.

Kilby and Reliance being unable to negotiate a settlement, Kilby filed a Motion For Equitable Distribution and Assessment of Attorney Fees.

This is important — Reliance prior to judicial decision demanded 80% of its total payout, or $623.09, in settlement. The trial court found that the true value of Kilby’s claim was $22,800 and that Reliance was entitled to only 18% of the PIP payments, or a total reimbursement of $138.24.

The trial court further found that a “dispute” between Kilby and Reliance had arisen necessitating court proceeding for its resolution under Fla.Stat. 627.736(3)(b) (1975). The court awarded Kilby’s attorney an attorney’s fee of $350 under authority of Fla.Stat. 627.736(8) (1975) and Fla.Stat. 627.428 (1975).

Reliance appeals. We affirm.

Reliance argues that, under the pertinent Florida Statutes, supra, a dispute is required, plus a judgment as a predicate for an award of an attorney fee. We disagree. It is our interpretation that only a dispute is required and we feel that the award of an attorney fee here is justified and authorized by Catches v. Government Employees Insurance Company, 318 So.2d 552 (1st DCA Fla.1975); White v. Reserve Insurance Company, 299 So.2d 661 (1st DCA Fla.1974).

Reliance seeks to distinguish Catches because there the carrier had demanded 100% reimbursement, while here the demand was for only 80%. In Catches the court said by demanding 100% the carrier was, in effect, denying a material obligation of coverage to its insured. We feel that in the instant case Reliance, by demanding 80% reimbursement when it was only entitled to 18%, did, as in Catches, deny a material obligation of coverage to its insured. Because of this denial Kilby is entitled to an award of an attorney fee under Fla.Stat. 627.428(1) (1975).

We would also adopt and repeat the caution found in Catches,

“We do not hold that an insurer, who in good faith negotiates with its insured as to the ‘equitable distribution’ of sums recovered from a tort-feasor, is liable for attorney’s fees when the insured pursues judicial relief.” 318 So.2d 552 at 553.

In the practical operation of equitable distribution of PIP benefits, we would suppose and hope that the insurer and insured, negotiating in good faith, would in most instances be able to amicably settle on an agreed apportionment without judicial help. However, we recognize that there may be problems in the everyday working relationship between the mentioned statutes and the Catches decision.

To begin with, as illustrated by the facts in the instant case, the amount of PIP benefits is often relatively small. With PIP benefits of $778.86 to be apportioned, it would make no economic sense for the insured to seek judicial apportionment if the insured must pay his own attorney fee. The fees could very well equal or surpass the award of benefits. After all, the legal work of demonstrating the value of the claim falls on the insured. So, if an insured is not to receive an award of attorney fees, he or she is left to the mercy and dictates of the insurer in the amounts of apportionment.

On the other nand, it would be an equally unfair application and interpretation to allow every insured an attorney fee upon the mere filing of a motion for equitable distribution, regardless of the good faith efforts of the insurer.

And so it is our view that an insured is entitled to an award of attorney fees when the insurer refuses or fails to negotiate in good faith. We further feel that the trier of the fact can gauge that good faith or lack thereof by the percentage imbalance between that amount demanded and that judicially awarded to the insurer. Where, as here, the difference is gross, it is our judgment that the trial court was correct in finding a dispute and awarding fees.

AFFIRMED.

ALDERMAN, J., and DAKAN, STEPHEN L., Associate Judge, concur.


author: HOBSON, Acting Chief Judge.

text:
    In re ESTATE of Mary Jo FANELLI, Deceased. Mary Ann BONGIORNO, Appellant, v. Mary Virginia FANELLI, Appellee.
    No. 75-392.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1976.

      Michael L. Kinney of Rood & Kinney, and Edward M. Waller, Jr. of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellant.
    T. M. Tucker of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appel-lee.
   HOBSON, Acting Chief Judge.

Mary Ann Bongiorno, the sole beneficiary under the will of Mary Jo Fanelli, appeals a final judgment entered pursuant to a jury verdict finding that testatrix did not have testamentary capacity at the time she executed her will. The circuit court, as a court of probate, declared the purported will to be null and void and of no force and effect and ordered that it be set aside.

The record reflects that the will was executed on February 8, 1973, and that testatrix died a few hours later by suicide due to acute nembutal intoxication. On February 14, 1973, the will was admitted to probate. On September 25, 1973, testatrix’s mother, Mary Virginia Fanelli, filed a petition for revocation of probate of the will and requested trial by jury. Appellant Bongiorno filed a motion to strike the request, and the court denied this motion, finding that permitting a jury trial in this case would be discretionary.

Appellant contends that the lower court committed reversible error in submitting the case to a jury. She argues that there is no provision in the constitution or statutes of Florida which requires a jury trial in probate matters and, in fact, § 732.30(2) F.S. 1973 [which was in effect at the time of trial] mandates that the judge shall decide whether or not to revoke probate. Former subsection 732.30(2) provided:

732.30 Revocation of Probate
s}c # sfc sf: sf: *
(2) Citation to appear and defend shall be served upon the personal representative; and the circuit judge shall, upon the issues made and the proof adduced, confirm or revoke the probate according to the law and justice of the case. (Emphasis added)

Like probate matters, equity eases were not subject to jury trials at common law. The courts of Florida have held, however, •that the submission of a factual question in an equity case to a jury is in the discretion of the court. Berg v. New York Life Insurance Company, Fla.1956, 88 So.2d 915; Vivian Greene, Inc. v. Levine, Fla.App.3d 1973, 287 So.2d 135. Also, in revocation of probation proceedings and juvenile delinquency proceedings the courts have said that a trial judge would have authority to use an advisory jury to determine a disputed issue of fact, although not required to do so. Singletary v. State, Fla.App.4th 1974, 290 So.2d 116; McKeiver v. Pennsylvania, 1971, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647.

While a party was not entitled as a matter of right to a jury trial in probate proceedings under the former probate laws, there was nothing to prevent a probate judge from using an advisory jury to aid him in resolving the issues. Smith and Armistead v. Croom, Fla.1857, 7 Fla. 180.

In the instant case the judge heard all the testimony and evidence adduced at the trial, and could have rejected the advisory jury verdict. See Gulf Life Insurance Company v. Urquiga, Fla.App.2d 1971, 251 So.2d 904. Instead, the judge accepted the finding of the jury and upon the issues made and the proof adduced, revoked the probate of the will in compliance with § 732.30(2) F.S.1973.

The record does not disclose that the jury verdict was contrary to the manifest weight of the evidence, and no such claim has been made by appellant. There is no argument offered to show that the conclusion would have been otherwise if the cause had been tried by the judge without a jury. Under these circumstances it could not be effectively contended that appellant has suffered injury by having the case tried by jury. The error, if any, was harmless. Shores v. Murphy, Fla.1966, 88 So.2d 294.

We have considered appellant’s remaining point on appeal and find it to be without merit.

The judgment appealed is AFFIRMED.

BOARDMAN and SCHEB, JJ., concur.


author: MAGER, Chief Judge.

text:
    Calvin Lee JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1625.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    Rehearing Denied Sept. 9, 1976.

      Richard L. Jorandby, Public Defender, and Arthur Gundling and George Barrs, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony Musto and C. Marie Bernard, Asst. Attys. Gen., West Palm Beach, for appellee.
   MAGER, Chief Judge.

This is an appeal from a judgment and sentence entered pursuant to a jury verdict in which Calvin Lee Jackson, defendant, was found guilty of breaking and entering with intent to commit a misdemeanor and sentenced to five years in the Division of Corrections.

It is the defendant’s contention that reversible error occurred when the prosecutor was allowed, during cross-examination of the defendant, to inquire into the nature of specific prior juvenile offenses.

The record in this case reflects that at the time the offense was alleged to have been committed, defendant was under the age of 18 years and hence a “child”, as defined in Chapter 39, Florida Statutes, and subject to the juvenile jurisdiction of the Circuit Court. Subsequently a waiver hearing was held and an order entered waiving the circuit court’s juvenile jurisdiction with the matter being transferred for trial as if the child was an adult. See section 39.09(2), F.S., and Rules 8.100(c) and 8.110(b), Fla.R. Juv.P.

At his trial, the defendant took the witness stand and testified in his own behalf. During direct examination the following colloquy occurred between defendant and his counsel:

“Q You ever been convicted of a crime?
“A In my juvenile days, yes. But since I turned eighteen, no.
“Q You’re not eighteen now, are you?
“A Yes sir
“Q You just turned eighteen?
“A Turned eighteen in jail.”

On cross-examination, the following colloquy occurred between the prosecutor and defendant:

“Q You said you were convicted as a juvenile?
“A Yes, I was.
“Q What were you convicted of?
MR. FERRARO: Your honor, that calls for a conclusion of the witness. And I don’t think he is competent to say right now. I don’t think — he realizes what a delinquency proceedings is.
THE COURT: Overrule the objection. You have to answer the question.
THE WITNESS: I was convicted one time for B & E.
MR. GILLEN: Breaking and entering?
THE WITNESS: Right. I was convicted one time for shoplifting.
MR. GILLEN: Any others?
THE WITNESS: (unintelligible)
MR. GILLEN: What were they?
THE WITNESS: Shop lifting groceries.
MR. GILLEN: Anything else besides shop lifting? Other B & Es?
THE WITNESS: Mostly shoplifting. I have B & E, but some of the time you know, it was violating probation. You know. Like one time they say I broke into a house, the probation officer came to me and told me that instead of waiting in jail for three months if I go to court they would only send me (unintelligible) at that time.”

By way of additional information defendant was charged with breaking and entering the dwellinghouse of Maggie and Sam Lamb. Defendant denied ever having been at the Lamb residence on the time and date in question and presented a corroborating witness to that effect. Mrs. Lamb testified that she observed a person later identified by her as the defendant walk out of her bedroom; she further testified that she had known defendant all of his life. No fingerprints were taken at the scene nor was any line-up held. Apparently the jury chose to believe Mrs. Lamb, rejecting the defendant’s testimony and alibi.

The defendant contends that the juvenile incidents were not “convictions of a crime” so as to be admissible for impeachment purposes and that, additionally, it was improper and prejudicial to permit a cross-examination into the nature of the specific prior juvenile offenses.

It is clear and the law is well settled that when a defendant testifies in his own behalf he may be asked whether he has been convicted of a crime. See section 90.-08, Florida Statutes; Jones v. State, 305 So.2d 827 (Fla. 4th DCA 1975). Defendant, however, in contending that a juvenile adjudication is not a “conviction” points to section 39.10(4), Florida Statutes (now renumbered section 39.10(5), F.S. (1975), which states:

“An adjudication by a court that a child is a dependent or delinquent child or a child in need of supervision shall not be deemed a conviction, nor shall the child be deemed to have been found guilty dr to be a criminal by reason of that adjudication, nor shall that adjudication operate to impose upon the child any of the civil disabilities ordinarily imposed by or resulting from conviction or disqualify or prejudice the child in any civil service application or appointment.”

Defendant also makes reference to section 39.12(6), Florida Statutes, which provides that juvenile court records are not admissible in evidence in any civil or criminal proceeding ' (except under certain exceptions not applicable here).

While the aforementioned statutory provisions clearly indicate that a juvenile adjudication is not a conviction of a crime and that the inadmissibility of juvenile records would seemingly preclude an inquiry into an accused’s prior juvenile court episodes, the particular facts and circumstances of the instant situation suggest the inapplicability of those statutes to this case. A defendant cannot take advantage on appeal of an error which he himself introduced or invited at trial. Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974). Here, the defendant, on direct examination by his own counsel, was asked whether he had been convicted of a crime, inviting defendant’s response, “In my juvenile days, yes. But since I turned eighteen, no”. No effort was made by defense counsel to correct or clarify this admission. Defense counsel’s line of inquiry and defendant’s response thereto opened the door for the admission of the juvenile episodes; therefore defendant should not be heard to complain about or seek relief for his own actions.

However, although the door may have been opened (to permit admission of the prior juvenile incidents) the invitation for admittance was not a complete and unbridled one. Under certain circumstances, pri- or convictions may be utilized as a basis for impeachment. However, here the defendant denied having any convictions since he reached eighteen years of age and admitted his prior juvenile adjudications. The state did not proceed to impeach defendant’s denial ; instead the state sought to explore defendant’s admission. As this court pointed out in Irvin v. State, 324 So.2d 684, 686 (Fla. 4th DCA 1976):

“It is plain that, if a witness denies the existence of past convictions, the prosecution may then proceed to impeach by producing a record of past convictions. Fla.Stat. § 90.08 (1973); McArthur v. Cook, 99 So.2d 565 (Fla.1957):
‘[T]he proper procedural approach is simply to ask the witness the straightforward question as to whether he had ever been convicted of a crime. The inquiry must end at this point unless the witness denies that he has been convicted. In the event of such denial the adverse party may then in the presentation of his side of the case produce and file in evidence the record of any such conviction. If the witness admits prior conviction of a crime, the inquiry by his adversary may not be pursued to the point of naming the crime for which he was convicted.’ Id. at 567.”

Once the defendant denied the existence of past convictions the state could have, if possible, proceeded to impeach the statement. This was not done. Instead, when the defendant admitted the prior juvenile adjudication the state, on cross-examination, proceeded to make further inquiry into the defendant’s prior adjudication including the naming of the incidents for which he was adjudicated.

The rationale of Irvin v. State, supra, is equally applicable to juvenile adjudications as it is to “convictions”. Therefore the state’s line of inquiry was improper and constituted reversible error. Arguably, if the defendant had given a false or inaccurate answer to the number of times he had been adjudicated it may have been proper for the state to refresh defendant’s memory as to such other incidents. State v. Young, 283 So.2d 58 (Fla. 1st DCA 1973). The record in the instant case does not suggest that the state’s line of questioning was pursued for that purpose.

A consideration of the totality of the factual circumstances and conflicting evidence suggests a potentially harmful and prejudicial effect produced by the state’s line of questioning; since it appears that the case turned largely upon the credibility of the witnesses the subject inquiry produced a circumstance which undoubtedly (potentially) affected the jury’s evaluation of the testimony. Accordingly, the judgment and sentence appealed are reversed and the cause remanded for a new trial.

REVERSED.

ALDERMAN, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.

      . The recent decision of the United States Supreme Court in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), equating a juvenile adjudicatory hearing to a criminal proceeding for the purpose of the application of the double jeopardy principle reflects a strong rationale permitting a juvenile adjudication to serve as a basis for impeachment in a subsequent criminal proceeding. But see sections 39.10(5) and 39.12(6), F.S.


author: ALDERMAN, Judge.

text:
    Kathryn MILLER et al., Appellants, v. HIGHLANDS INSURANCE COMPANY et al., Appellees.
    No. 75-1446.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.

      Gilbert A. Haddad and Peter A. Miller of Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for appellants.
    Samuel Tyler Hill of Hinckley & Shores, Fort Lauderdale, for appellees Allstate and Stern.
   ALDERMAN, Judge.

This is an appeal from the trial court’s order dismissing with prejudice, for failure to state a cause of action, the claim of Kathryn Miller, as personal representative of her deceased unborn child.

The material facts alleged in the complaint are as follows: Kathryn Miller was a passenger in an automobile which was involved in an accident. At the time of the accident she was seven or more months pregnant with the child of her husband. The unborn child was viable, capable of sustaining its own life outside the womb, and would have survived but for the accident. As a direct and proximate result of the defendant’s negligence the unborn child was killed.

In determining whether the complaint states a cause of action, the trial court and this court on appeal must assume all the well-pleaded allegations of the complaint to be true. Hopke v. O’Byrne, 148 So.2d 755 (Fla. 1st DCA 1963).

The Probate Division of the Circuit Court of Broward County appointed Kathryn Miller to be personal representative of her deceased unborn child. In her representative capacity she claims compensation on behalf of herself and her husband pursuant to the “Florida Wrongful Death Act”, Sections 768.16-768.27, Florida Statutes (1973).

An action for wrongful death is entirely a creature of statute, being unknown to common law. If Kathryn Miller and her husband have a cause of action for the wrongful death of their unborn, viable child it must be based on § 768.19, which provides:

“When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercaft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.”

The primary issue on this appeal, and the question which we must first decide, is whether an unborn, viable child, killed as a direct and proximate result of another’s negligence, is a “person” within the intent of § 768.19. If so the parents have a cause of action and the trial judge should not have dismissed the complaint. If not, the trial judge was correct and should be affirmed.

The Florida Supreme Court has not ruled on this point. In Stokes v. Liberty Mutual Insurance Co., 213 So.2d 695 (Fla.1968), the Supreme Court held a stillborn fetus not to be a minor child within the contemplation of the former “Wrongful Death of a Minor Act”, Section 768.03, Florida Statutes (1965), and denied recovery to the parents of a stillborn fetus. The holding of Stokes does not control the present case. As pointed out by the Supreme Court:

“ . . . the Stokes do not claim under Fla.Stat. § 768.01, F.S.A., our general ‘death by wrongful act’ statute. Conceivably this would be possible if they could: (1) establish a stillborn fetus as ‘any person’ under the statute; and (2) have someone appointed administrator of this so-called ‘person’ so as to be able to bring the action in order of priority fixed by Fla.Stat. § 768.02, F.S.A.” (At 697.)
“We are not here called upon to determine whether the stillborn fetus is a ‘person’ . . . under the last two cited sections.” (At 698.)
“In view of the peculiar language of § 768.03, allowing recovery for the wrongful death of a ‘minor child’, we hold that a stillborn fetus is not within the statutory classification. . . . [0]ur judgment is concluded primarily by the particular language of the Florida Statute in the light of its historical background.” (At 700.)

A condition of recovery under § 768.19 is that “ . . . the event would have entitled the person injured to maintain an action and recover damages if death had not ensued . . . ” We first consider whether under Florida law the Miller child, if it had survived and had been born alive, would have been entitled to maintain an action and recover damages for its prenatal injuries. A similar question has recently been considered by the Second District Court of Appeal in the case of Day v. Nationwide Mutual Insurance Co., 328 So.2d 560 (Fla. DCA 1976). In a well reasoned opinion the Second District held that a child born alive, having suffered prenatal injuries at any time after conception, has a cause of action against the tortfeasor. Our determination in this ease does not have to be as broad. For the purposes of this appeal we assume that the unborn child at the time of its prenatal injury was viable. However, we accept the rationale of Day v. Nationwide Mutual Insurance Co., supra, and hold that the Miller child, if it had survived and had been born alive would have been entitled to maintain an action and recover damages for its prenatal injuries.

We now reach the crucial question of whether an unborn but viable child is a “person” within the meaning of § 768.19. The Supreme Court in Stokes, supra, pointed out that the first American case allowing recovery for the wrongful death of a viable, stillborn fetus was Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949). Thereafter divergent views developed and the court in Stokes, supra, at page 699, was able to cite numerous cases from other jurisdictions, one group holding that a viable fetus is a person and the other holding that a viable fetus is not a person. The passage of time has not closed the gap.

Additional cases which allow a cause of action for the death of a viable, unborn child are: Simmons v. Howard University, 323 F.Supp. 529 (D.D.C.1971); Chrisafo-georgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973); Orange v. State Farm Mutual Automobile Insurance Co., 443 S.W.2d 650 (Ky.1969); Rice v. Rizk, 453 S.W.2d 732 (Ky.App.1970); O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974); Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971); Panagopoulous v. Martin, 295 F.Supp. 220 (S.D.W.Va.1969); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1971); Toth v. Goree, 65 Mich.App. 296, 237 N.W.2d 297 (1971).

The view that a cause of action for the death of a viable, unborn child is not maintainable is supported by the following additional cases: Bayer v. Suttle, 23 Cal.App.3d 361, 100 Cal.Rptr. 212 (1972); McKillip v. Zimmerman, 191 N.W.2d 706 (Iowa 1971); Leccese v. McDonough, 361 Mass. 64, 279 N.E.2d 339 (1972); Henry v. Jones, 306 P.Supp. 726 (D.Mass.1969); Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969); Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969); Justus v. Atchison, 126 Cal.Rptr. 150 (Ct. App. 2d Dist.1975).

The reasons advanced by the various courts allowing a cause of action for the wrongful death of a viable, unborn child can be summarized as follows: A viable fetus is a human being. A living human being, born or not, is a person, and so is within statutes using the term “person” in an appropriate context. A human life is destroyed when a viable fetus is killed, for when viable the child is capable of independent existence outside the womb, and it is irrational to allow liability for the death of a person to hinge on whether the fatal injuries occur just before or just after birth. It is unjust to permit recovery for prenatal injuries only if they are not so severe as to cause death; such a situation favors the wrongdoer who causes death over the one who merely causes injuries, and so enables the tortfeasor to foreclose his own liability. The trend is toward allowing recovery for prenatal injuries to viable children. (See 15 A.L.R.3d 992, 994.)

The arguments generally enlisted by the courts denying the right to maintain an action for the wrongful death of a viable unborn child are these: An unborn child is not a person, but rather is only a part of its mother and so has no juridical existence. At common law a child born dead could not maintain an action for prenatal injuries. When the child is killed by, rather than surviving, its injuries, there is no basis for recovery based on deformities, disabilities, increased parental responsibilities, and the like. When the unborn child is killed there is no way to compute hypothetical future benefits to beneficiaries, nor is there evidence from which to infer monetary loss to the survivors; damages would be punitive, contrary to the intent of the wrongful death statutes, and against public policy. (See 15 A.L.R.3d 992, 994.)

Basically the same arguments on both sides of the question have been made by the parties to this appeal. In determining which of the conflicting views to accept we must give appropriate weight to § 768.17, which provides:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.27 are remedial and shall be liberally construed.”

Accordingly, in construing this statute we should not impute to the Legislature a narrow and restrictive intent. If the Legislature had intended to exclude a viable, unborn child from the meaning of the word “person” we believe that it would have expressly done so. Since it did not, we conclude that the Legislature used the word “person” in a broad and unrestrictive sense, intending to include a viable, unborn child. As stated by the Supreme Court in McKibben v. Mallory, 293 So.2d 48 (Fla.1974):

“ . . . , our view is that when the new wrongful death act adopted by the 1972 Legislature, effective July 1, 1972, became effective, it provided a new and improved method of obtaining damages for the tortious destruction of a human life.” (At 55.)

We conclude that the better view is that which allows a cause of action for the wrongful death of a viable, unborn child. In our opinion a viable unborn child is a “person” within the meaning of § 768.19.

We have not overlooked the case of Davis v. Simpson, 313 So.2d 796 (Fla. 1st DCA 1975), wherein the First District Court of Appeal reached a contrary conclusion, holding that the term “person” within the meaning of § 768.19 does not include a full term, viable, but stillborn fetus. We have considered the rationale of Davis v. Simpson, supra, and although we respect the opinion of the First District, have reached a contrary conclusion. Our Constitution recognizes that the District Courts of Appeal may from time to time have divergent opinions. A procedure exists by which conflicts may be resolved and the law brought into harmony. Article V, Section 3(b)(3), Florida Constitution.

Having determined that under § 768.19 there is a cause of action for the wrongful death of a viable, unborn child we are faced with the secondary question of damages. Like the cause of action itself, only those damages specifically allowed by the “Florida Wrongful Death Act” may be recovered. For the benefit of herself and her husband, Kathryn Miller in her complaint seeks damages for:

(a) Medical and funeral expenses.
(b) Loss of future support and services.
(c) Pain and suffering of the parents of the unborn child.

We must determine whether these types of damages are recoverable for the wrongful death of a viable, unborn child.

First we will consider the claim for medical and funeral expenses. Section 768.21(5) provides that damages may be awarded for:

“Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.”

It is conceivable that the unborn Miller child prior to its death may have required medical treatment separate and apart from that required by its mother. It should be remembered that we are not here dealing with a question of proof. The complaint alleges that medical expenses were incurred. In our opinion this is a proper element of damage and the plaintiff should be allowed an opportunity to prove the allegation. The same is true of funeral expenses. It is foreseeable that the parents of a stillborn child would incur funeral expenses. We hold that these expenses are proper elements of damage for the wrongful death of a viable, unborn child. This is in keeping with the legislative intent of the “Florida Wrongful Death Act” to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. § 768.17.

A different situation exists as to plaintiffs’ claim for future loss of services and support. Section 768.21(1) allows a survivor to recover the value of:

“ . . . future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the surviv- or’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered.” § 768.21(1)

In our opinion future loss of services and support is not an allowable element of damage for the wrongful death of a viable, unborn child. It is fundamental that damages may not be assessed on the basis of sheer speculation. 22 Am.Jur.2d, Damages, § 25; 25 C.J.S. Damages § 26, p. 675 et seq.; 9A Fla.Jur., Damages §§ 15,18. In the case of prenatal death there is no competent means of measuring the value of future services and support of the unborn child. It would be impossible to prove by competent evidence the pecuniary value of future services and support of an unborn child. None of the usual indicia such as mental and physical capabilities, personality traits, aptitudes and training of the wrongfully killed are present. Evidence as to the unborn’s child’s “probable net income available for distribution to the particular survivor, and the replacement value of decedent’s services to the survivor” would be sheer speculation. There could be no competent evidence as to the child’s capabilities and potentialities. Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425, 15 A.L.R.3d 983 (1966). Plaintiff’s claim for future loss of support and services should be struck.

In considering the claim for pain and suffering of the parents of the unborn child we must construe § 768.21(4), which provides:

“Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.”

The key wording in this section is “minor child.” Section 768.18(2), Florida Statutes (1973), Definitions, states:

“ ‘Minor children’ means unmarried children under twenty-one years of age.”

The construction of the term “minor child” in Stokes v. Liberty Mutual Insurance Co., supra, pertained only to a statute which was in force at that time and does not bind us here. In its restrictive definition of “minor child” in Stokes, the Supreme Court repeatedly emphasized that it was speaking solely in terms of § 768.03. It was not saying that an unborn child could never be a minor child in any context; it was merely saying that in the “peculiar language” of that statute a stillborn fetus was not within that unique statutory classification. Under the current wrongful death statutes, which represent a new departure on the entire subject, the element of damage created by § 768.21(4) is merely a statement of one of the modes of recovery available once the right of action has been established under § 768.19. We do not believe that a restrictive judicial interpretation of the term “minor child” as once used in a defunct statute must forever restrict the meaning of this term when it is used in a new, improved statute. We therefore conclude that the intent of the Legislature in enacting § 768.21(4), which happens to include the term “minor child”, cannot be determined simply by reference to former § 768.03 and to a judicial opinion interpreting that now repealed statute.

We believe the use of the term “minor child” within the context of the current Florida Wrongful Death Act was intended to restrict the recovery of parents, as far as mental suffering is concerned, to such suffering caused by the death of a younger child as opposed to an offspring who is an adult. The provisions of the Florida Wrongful Death Act show a methodical approach to reasonable limitation of a tortfeasor’s liability. The right of recovery is made to depend upon the closeness of the survivor’s relationship to the deceased. The use of the qualifying word “minor” in § 768.21(4) recognizes the increasing detachment of children from parents with advancing maturity and provides a cut-off point beyond which a wrongdoer’s liability for the mental suffering of those related to his victim may not be stretched. It is unreasonable to assume that words used to create a cut-off point based on an increase of independence of the child from the parent are also meant to be used to prevent recovery at a time when the ties between mother and child are most dependent. Birth is without question a major event in the development of a human being, but it is certainly not the beginning of an individual’s life nor the beginning of his parents’ love and concern. The mental pain and suffering of the parents of a stillborn child may be just as terrible as that of parents whose child dies after birth. In view of the legislative mandate that this statute is remedial and shall be liberally construed we hold that the Legislature intended to include a viable, unborn child within the meaning of the term “minor child” in § 768.21(4).

In summary we hold that a viable, unborn child is a “person” within the meaning of § 768.19, and that a cause of action exists for the wrongful death of such a child. A survivor who has paid them may recover such medical expenses as are incurred for the benefit of the viable, unborn child separate and apart from the medical expenses incurred for the benefit of the mother, as well as for the funeral expenses of the stillborn child. The parents may also recover for their mental pain and suffering. However the survivors may not recover for future loss of support and services of the stillborn child.

We believe this case contains questions of great public interest and upon proper application of the parties will so certify pursuant to Fla.App. Rule 4.5(c)(6).

Reversed and remanded with instruction that plaintiffs’ complaint be reinstated with the exception that the prayer for loss of future support and services be stricken.

MAGER, C. J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.

      . § 768.03, Fla.Stat. (1965). Parties in actions for death of minor child; damages.—
      (1) Whenever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or default of any individual, or by the wrongful act, negligence, carelessness or default of any private association or persons, or by the wrongful act, negligence, carelessness or default of any officer, agent or employee of any private association of persons, acting in his capacity as such officer, agent or employee, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, negligence, carelessness or default of any officer or agent, or employee of any corporation acting in his capacity as such officer, agent or employee, the father of such minor child, or if the father be not living, the mother may maintain an action against such individual, private association of persons, or corporation, and may recover, not only for the loss of services of such minor child, but in addition thereto, such sum for the mental pain and suffering of the parent (or both parents) if they survive, as the jury may assess.
      (2) The right of action as set forth in subsection (1) shall extend to and include actions ex contractu and ex delicto.

      . The Florida Supreme Court has recently held, in Hanley v. Liberty Mutual Insurance Co., 334 So.2d 11 (Fla., 1976), that with the passage of § 743.07, Fla.Stat. (1975) the definition of “minor” as contained in §§ 768.16 to 768.27, Fla. Stat. has been amended to mean any unmarried child under the age of 18 years.


author: SMITH, Judge.

text:
    Hawthorne Konrad MATTHEWS, Appellant, v. STATE of Florida, Appellee. Billie Joe BROOKS, Sr., Appellant, v. STATE of Florida, Appellee.
    Nos. Z-133, Z-166, Z-275.
    District Court of Appeal of Florida, First District.
    July 26, 1976.
    Rehearing denied Sept 9, 1976.
    Paul Shimek, Jr., of Shimek & McDaniel, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

An Escambia County jury found that appellants Matthews and Brooks committed extortion by verbal threats of bodily injury, in violation of § 836.05, F.S., while leading nighttime demonstrations in February 1975 at the Escambia County jail in Pensacola. Over a period of more than three weeks, up to 200 black demonstrators protested the shooting of a young black man by deputy sheriff Doug Raines. A grand jury found the killing justifiably committed in self-defense, but the demonstrators excoriated Raines as a murderer and demanded his dismissal from the force. They also sought such concessions as more black deputies and matrons and “more black justice throughout the county.”

Acknowledging their purpose to secure Raines’ dismissal, appellants insist that the First Amendment entitled them to so petition or demand by mass chants, prayers, pickets, songs, parades, and other forms of pure and symbolic speech. They urge reversal of their convictions for lack of a sufficient showing that their chanted allusions to “assassination” of the sheriff and other uncooperative public officials constituted, in law, a “threat . . . calculated to coerce the victim to meet the demands of the extortioner in order to prevent the threat from being carried out.” State v. McInnes, 153 So.2d 854, 858 (Fla.App. 1st, 1963).

The information charges that Matthews and Brooks “did verbally and maliciously threaten injury” to sheriff Untreiner, deputy Raines and numerous other deputies in order to compel the sheriff’s acquiescence in their demands for Raines’ dismissal. At the heart of the State’s case is the demonstrators’ vituperative chant which, given the ominous literal interpretation invoked by the State, threatens not mere “injury” but death to Governor Askew in addition to the others named:

“Two, four, six, eight, who shall we assassinate?
Doug Raines, Doug Raines, Sheriff Un-treiner, Askew, and the whole bunch of you pigs.”

There was evidence that appellant Matthews led the chant with a bullhorn and that appellant Brooks joined in.

We will not jeopardize Florida’s extortion statute by reading its proscription of verbal and written threats so broadly that it offends the First and Fourteenth Amendments. The Supreme Court in Waits v. United States, 394 U.S. 705, 707-08, 89 S.Ct. 1399, 1401-02, 22 L.Ed.2d 664, 667 (1969), construing the federal statute proscribing threats of bodily harm to the President, held that “political hyperbole,” though “vituperative, abusive, and inexact,” cannot constitutionally be confused with and prosecuted as a criminal “threat”:

“[A] statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.”

Watts did not decide whether, in light of the First «Amendment, the federal statute requires proof of the accused’s actual intent “to carry out his ‘threat’ ” or if it is satisfied by proof of his “apparent determination.” But, the Supreme Court held, only “a true ‘threat’ ” may be the subject of criminal prosecution. Our Court’s decision in Mclnnes, that a demand and threat actionable under the Florida statute must be calculated to coerce the victim’s acquiescence “in order to prevent the threat from being carried out,” seems to be in harmony with Watts' constitutional restriction of prosecution to “real” threats.

Appellants’ argument is that the chanted allusion to assassination of the deputy, the sheriff, the governor “and the whole bunch of you pigs” was on its face and in this context a privileged “public harangue, of a political nature,” as was the mock “threat” held privileged in Watts. United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir. 1975). Shocking and offensive as the words were, especially as delivered in cheering cadence by a substantial number of the crowd approaching 200, appellants urge that the “pep rally” style of delivery, the laughter that punctuated the chant, and the improbability of the message itself leave a reasonable doubt that appellants calculated their words to induce all Escambia County lawmen to capitulate rather than be killed along with the governor.

Appellants are correct in urging that the context of the chant and the mood and reaction of the crowd are to be taken into account in coloring the words spoken. Waits, 394 U.S. at 708, 89 S.Ct. at 1402, 22 L.Ed.2d at 667. But, if surrounding circumstances are thus to be gleaned for facts casting an innocent light on the critical words, we must also deal with evidence of graver significance.

Appellants’ offense allegedly was committed on the night of February 21, after more than three weeks of frequent demonstrations of various kinds and several nightly gatherings at the jail. Until the 19th, one deputy testified, the nighttime gatherings were noisy but good-humored “pep rally” affairs. Then, the mood of the crowd began to become “more hostile, frightening.” On the 21st, he testified,

“. . . the crowds’ chant lost the cheerfulness tone, so to speak, and became, to me, very serious, very threatening.”

He considered that the demonstrations were “peaceful” until the 21st, “but when they came with the weapons, it changed the whole atmosphere.”

The weapons referred to were sometimes concealed beneath coats and sometimes openly exhibited by members of the crowd. Plainly visible in the front row of the crowd were several sticks or clubs, held by demonstrators in one hand and slapped in the palm of the other under the noses of deputies on the scene. A steak knife was seen being passed from one demonstrator to another. Umbrellas with pointed tips and a golf club shaft, head removed, were exhibited. And, as the “assassination” chant was delivered, members of the crowd “turned around and pointed their fingers at us,” said one of the deputies guarding the jail and monitoring the demonstration. Two officers were spat upon by unknown members of the crowd. These acts done in appellants’ presence reveal a menacing intention by at least some of the “assassination” chanters.

It would surely be improper, as appellants argue, to inculpate them for association with a few menacing individuals in a crowd of 200, or to assume by transference that appellants’ purposes were those of the most malevolent person there. Absent independent proof that appellants adopted as their own thd object of enforcing demands by “real” threats which were calculated to overcome the sheriff’s will by fear, this is no place for application of the doctrine that “all the acts and declarations of the members of a conspiracy constitute the acts and declarations of, and are therefore admissible against, each of them.” Resnick v. State, 287 So.2d 24, 25 (Fla.1974). However, because the appellants led the crowd which was responsively arrayed before them, acts and attitudes of members of the crowd may be considered in ascertaining the meaning of the collective chant. The question is: To what meaning did appellants subscribe?

The evidence of appellant Matthews’ purpose to induce fear goes beyond merely leading the chant. On the 21st, he made certain the point was brought home to sergeant Edison by turning to him at the end of the “assassination” chant and saying, “That goes for you too.” Using the bullhorn, he also “directed the crowd” to deputy Cardwell and announced, “Boy, we’ll eliminate you too, if you don’t straighten up.” This, taken with evidence of his dominant position before the massed demonstrators, some of whom brandished crude weapons, could properly have convinced the jury that Matthews consciously embraced fear of bodily injury as an instrument of enforcing otherwise lawful demands. Consequently, the evidence was sufficient to convict him of extortion.

Not so as to appellant Brooks, who was not heard to express any individual threat, who was not continually present, who did not entirely share Matthews’ leadership in directing the “assassination” chant, and who took pains to keep passage open for essential jail traffic. The jury could not properly have concluded, beyond a reasonable doubt, that appellant Brooks’ participation in the demonstration exceeded the bounds of permissible expression protected by the First and Fourteenth Amendments.

We have considered all of appellant Matthews’ points, including his assertion that the trial court erred in admitting evidence of anonymous telephone threats. While it was improper to admit proof of such acts by presumed but unknown “co-conspirators” who were outside Matthews’ presence, Matthews’ trial counsel, who was later replaced, did not object. Admission of the evidence was not fundamental error requiring reversal in the absence of objection. Matthews’ other arguments do not persuade us.

REVERSED as to Brooks, AFFIRMED as to Matthews.

MILLS, Acting C. J., and CAWTHON, VICTOR M., Associate Judge, concur.

      . Section 836.05 provides: “Whoever, either verbally or by a written or printed communication, maliciously threatens ... an injury to the person, property or reputation of another, .. . with intent thereby ... to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his will, shall be guilty of a felony of the second degree . .

      . Appellant Matthews was sentenced to imprisonment for five years. Appellant Brooks was placed on five years’ probation “on condition you not conduct or participate in any public demonstrations in the State of Florida or elsewhere.” The condition of Brooks’ probation appears to be an impermissibly overbroad restraint on a form of protected speech. See, e. g., Porth v. Templar, 453 F.2d 330, 334 (10th Cir. 1971).

      . Some evidence, including testimony by one deputy, tended to show that the “threat” was not to “assassinate” but to “incaserate” or “incarcerate.” There was evidence also that some demonstrators varied the verb to “castrate.” The jury’s verdict binds us to the “assassination” version urged by the State.

      . The majority in Watts professed to have “grave doubts” that a conviction could be had on proof of only an apparent determination to carry out the threat. 394 U.S. at 707-08, 89 S.Ct. at 1401, 11 L.Ed.2d at 667. A divided panel of the Court of Appeals had held, in an opinion by Judge Burger, that actual intent to execute the threat is not an element. Watts v. United States, 131 U.S.App.D.C. 125, 402 F.2d 676 (1968).

      . 394 U.S. at 708, 89 S.Ct. at 1401, 11 L.Ed.2d at 667.

      . 153 So.2d at 858.

      . Watts’ words, delivered in protest of his conscription during the Vietnam conflict, were: “I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” 394 U.S. at 706, 89 S.Ct. at 1401, 22 L.Ed. at 666.

      . We have listened to the tape recording of the demonstration of February 20, introduced in evidence by the State.