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Chapter 1 – 1.13 Crimes Against the Person

CRIMINAL LAW

 

1.13 Crimes Against The Person

 

A. Homicide - Justifiable / Excusable

 

                Homicide involves the death of a human being through the agency of another human being. Not all homicides are criminal in nature. Homicides which are classified by law as either justifiable or excusable are legal homicides from which no criminal charges may flow. Illegal homicides are classified by statute in the category of either murder or manslaughter.

                The killing of a human is either justifiable or excusable homi­cide or murder or manslaughter, depending upon the facts and cir­cumstances of each case.

                A homicide is justifiable when committed by public officers and those acting by their command, in the aid and assistance, either in obedience to any judgment of a competent court, or when necessarily committed when overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty, or when necessarily committed in restraining felons who may have been rescued or who have escaped, or when necessarily committed in ar­resting felons fleeing from justice.

                Homicide is also justifiable when committed while resisting any attempt to murder or commit a felony upon an individual or any assault in any dwelling house in which a person may be, or whenever committed in lawful defense of another person, when there is reason­able grounds to apprehend a design to commit a felony or do some great personal injury and there shall be imminent danger of such de­sign being accomplished.

                Homicide is justifiable when necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed or lawfully suppressing any riot or lawfully keeping and preserving the peace.

                Homicide is excusable when committed by accident and misfor­tune, or in doing any other legal act by lawful means with usual ordi­nary caution and without any unlawful intent. Homicide is also excu­sable when committed by accident and misfortune in the heat of passion upon any sudden and sufficient provocation upon sudden combat without any dangerous weapon being used and not done in a cruel or unusual manner.

 

B. Illegal Homicide

 

                In Sims v. State, 184 So. 2d. 217, (Fla. 2d. DCA 1966), the three elements essential to prove the corpus delicti of homicide cases were determined to be:

 

                1.             Death of a human being.

                2.             Through the criminal agency of another person; and

                3.             Establishing the identity of the deceased.   

 

1. Murder in the First Degree

 

                The unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpe­tration of, or attempt to perpetrate any arson, involuntary sexual battery, burglary, kidnapping, aircraft piracy, carjacking, home invasion robbery, robbery, or throwing, placing, or discharging of a destructive device or bomb, the unlawful distribution of heroin by a person 18 years of age or older when such distributing is proven to be the proximate cause of the death of the user, escape, any traffick­ing offense prohibited by Chapter 893, and aggravated child abuse shall be murder in the first degree.

                In Florida, there is no statutory provision for how long premed­itation must exist. The premeditation may exist for days, weeks, or only a matter of seconds. The question is: Did the individual act upon facts from a premeditated design to effect the death of the other person?

                At the old common law, it was held to be the rule that one who did not die within a year and a day from the date the harm was in­flicted was held not to have been murdered, and no such charge was brought against the perpetrator. It should be noted that most jurisdictions have changed the year and a day rule so that there are no hard and fast time limits on the general rule relating to proximate cause. For instance, the Calif­ornia Penal Code provides for a statutory period of three years and one day.

 

                There are several kinds of malice aforethought:

 

                1.             The first, of course, is the intent to kill another human be­ing and this would include the doctrine of transferred in­tent. In other words, if "A" intends to kill "B" and shoots at "B" but "B" ducks and the bullet strikes "C," "A" may be held responsible for the premeditated murder of "C." Thus, even though the defendant may not have had the premeditated design to kill the exact person who ultimate­ly died, the intent to kill an individual will be transferred when his act results in the death of another.

                2.             Malice aforethought is said to exist when the defendant has the intent to cause great bodily harm.

                3.             Malice aforethought or premeditation is said to exist when an individual kills an officer while resisting a lawful arrest.

                4.             Malice aforethought is also said to exist when the actions of the defendant obviously threaten death or great bodily in jury with regard to the victim.

                5.             The final type of malice aforethought is commonly known as "felony-murder.'' As can be observed by reading the First Degree Murder statute in Florida, death occurring during the commission of certain enumerated and specific felonies, when caused by one of the perpetrators, is consid­ered to be murder in the first degree. The element of malice aforethought is artificially injected into the crime by vir­tue of the fact that the death itself occurs during the com­mission of one of the enumerated felonies and is caused by one of the perpetrators.

 

                The legislative intent at the time the felony-murder statute was first drawn was to make any death occurring during one of the seri­ous felonies enumerated murder in the first degree as to the felon or co-felons. The acts as originally drawn and as originally interpreted by the courts thus made it possible to charge a co-felon with murder in the first degree even when the homicide occurring was itself a legal homicide, i.e., either justifiable or excusable.

                Over the course of several years, however, the case law in vari­ous jurisdictions has taken different views of the felony-murder doc­trine. The result has been a significantly narrowed approach to the rule and in some jurisdictions the scope of the rule has been narrowed to the point where one may not charge a co-felon with murder in the first degree under the statute where the death occurring is it­self justifiable or excusable.

                For example, courts in California have held recently that while a defendant may not be convicted of felony-murder where the death which occurs is caused by an individual resisting the felony, said de­fendant may still be held responsible for murder in such a situation if he has committed an act likely to cause death with a conscious dis­regard for life.

                The Pennsylvania courts have decided several cases of impor­tance under the felony-murder rules. InCommonwealth v. Moyer, 357 Pa. 181, 53 A. 2d 736 (1947), the Pennsylvania court affirmed the conviction for the murder of a gas station attendant who was killed when the defendant and another attempted to rob the sta­tion and engaged in a gun battle with the owner of the station. In that case, the court said that the defendants could be convicted of felony-murder even though it was not known from whose gun the fatal shot was fired. In the Court's interpretation of the felony ­murder statute at that time, it took the position that it was acting with reason and sound public policy to find that when an indivi­dual attempts to commit the crime of robbery and is armed in that attempt, he sets in motion a chain of events which he should have understood at the time he initiated the act could result in the death of some individual. In effect, the Court is holding the defendant re­sponsible on a theory of proximate cause, i.e., the long established rule that one whose felonious act is the proximate cause of another's death is responsible for that death.

                Taking a slightly different view, the court in Commonwealth v. Redline, 391 Pa. 486, 137 A. 2d 472 (1958), reversed a murder conviction which was based upon the death of a co-felon who was shot by police in the course of a felony.  Pointing out that the homicide which had occurred was justifiable, the court held that there was no rational theory under which a homicide which is legal in and of itself can arbitrarily, by statute, be made illegal as to certain persons connected with the act. Thus, there is no way, according to the Pennsylvania court, to bring criminal charges against an individual for the consequences of the lawful conduct of another, in this case the police officer.

                In the case of Commonwealth ex rel. Smith v Myers, 438 Pa. 218, 261 A. 2d 550 (1970), the Pennsylvania courts finally laid to rest the felony-murder rule as originally enunciated in Common­wealth v. Moyer in 1947, stating once and for all that a killing which is lawful in and of itself cannot be made unlawful by statute as to any participant in the crime.

                The effect of these decisions, at least in the Commonwealth of Pennsylvania, is that the felony-murder rule may only be invoked to inject the element of malice aforethought or premeditation into a death when the death occurring is and of itself an unlawful homicide.

                The Florida cases under the felony-murder rule are anything but definitive with regard to this subject. One of the early Florida cases dealing with the issue is Hornbeck v. State, 77 So. 2d 876 (Fla. 1955), where the court affirmed the conviction of a defendant in a case where the police officer was killed when the defendant and his accomplice entered into a gun battle with the police while they were attempting to escape from a robbery. The facts of that case would have allowed the jury to infer that death or the fatal bullet was fired from the gun of the accomplice, although it was possible that the officer was killed by his own fellow officers.

                In reaching its decision, the court quoted the early Pennsylvania decisions on this issue and held in effect that if in the course of the robbery, the co-felons open fire upon the police or others and in self-defense the fire is returned by police officers and someone is killed during the exchange of gun fire, it is concluded that the death of the police officer was proximately caused by the actions of the co-felons.

                One of the more recent Florida decisions concerning the appli­cability of Florida's felony-murder statute is the case of State v Williams 254 So. 2d 548 (Fla. 2d DCA 1971). There, the defendant and the victim, owners of a hunting camp, conspired to unlawfully burn the camp. Pursuing this conspiracy, the victim went to the camp site alone and, while attempting to commit arson, was fatally burned. During the period of time that the victim was setting fire to the camp, Williams was not present and was in fact in another county several miles away. The prosecutor attempted to charge Williams with first degree murder. However, the indictment was dismissed by the trial court. In its decision, the Second District Court of Appeal upheld the dismissal of the indictment, holding in effect that the felony-murder statute was not applicable under the peculiar facts of the Williams case .

                The court indicated that the question presented was unique in Florida law. However, it recognized that a 1966 Florida Appellate Court decision, a very similar factual setting was ruled upon. In the case of State ex rel. Glenn v. Klein, 184 So. 2d 904 (Fla. 3d DCA 1966), the accused had been convicted of first degree murder for the death of his co-felon who was shot by the intended victim of a robbery However, the court in Klein did not get to the question of the validity of the charge and reached the decision basically on the question of whether or not it was double jeopardy to charge an indi­vidual both with the murder and with the substantive crime itself.

                Thus, in the Williams case, the question to be resolved was un­der what circumstances may a conspirator be charged with felony­ murder if his co-conspirator dies during the course of the felony. In Williams, the court cited a 1955 Pennsylvania decision which held that in a conspiracy to commit arson, the conspirator may be charged with felony-murder if his co-conspirator dies during the course of that arson. The case referred to is Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464 (1955). The Court of Appeals noted, however, that the Bolish case was distinguishable from the Williams case in that the Bolish case involved the defendant being present at the scene of the arson and being an active participant. In Williams the defend­ant was not an active participant in the arson and, in fact, was not even in the county where the crime occurred.

                Thus, the Second District Court of Appeal concluded that the controlling consideration in Bolish appeared to be the actual presence of and participation by the surviving co-conspirator. In addition, the Court noted that courts of other states have held felony-murder stat­utes inapplicable in situations similar to the Williams facts. The Court observed that these cases hold that the death of a co-conspirator, en­tirely by his own act, is simply not a criminal homicide.

                The Second DCA suggested that the test to be applied in order to determine when one conspirator may be charged with a felony ­murder if his co-conspirator dies in the contemplated felony is whe­ther or not an innocent person is killed. The Court felt this test was not in line with the ultimate purpose of the felony-murder statutes themselves, which is to prevent the death of innocent persons likely to occur during the commissions of certain inherently dangerous and particularly grievous felonies.

                In summary then, in the Williams case the Second District Court of Appeal held that the felony-murder statute may be applied only when an innocent person is killed as a sequential result (proximate cause) of events set in motion by one or more persons acting in furtherance of an attempt to commit one of the felonies enumerated in the first degree murder statute of Florida. The Court concluded, therefore, that the facts of Williams were outside of this test and accordingly the felony-murder statute is not applicable.

                The dissent in Williams noted specifically that there is over­whelming authority for the proposition that under the felony-murder statute, a person can be prosecuted for first degree murder when an accomplice is killed in furtherance of perpetrating or attempting to perpetrate such a felony, even though the person charged was not at the actual scene of the homicide. The dissent in Williams thus would allow the charge of first degree murder to stand. There has been no ruling by the Supreme Court on this precise issue, as the Williams case was never appealed by the state to the Supreme Court of the State of Florida.

                One other significant decision rendered by the Florida Appellate Courts is State v. Andreu, 222 So. 2d 449 (Fla. 1st DCA 1969), where the First District Court of Appeal held that the felony-murder rule in Florida could not apply where one police officer was killed by another police officer during an attempt to apprehend a defendant who was burglarizing a residence. The peculiar facts of the Andreu case were that the defendant was not armed and did not even know of the presence of the officers who were outside the building he was burglarizing. As a matter of fact, the case indicated that the homicide resulted from the deceased officer's failure to adhere to a pre-arranged plan. Contrary to the plan, the deceased officer moved in the dark­ness in a direction forbidden, which was intended to be covered by another officer. Mistakenly believing the deceased to be a burglar, the fellow officer fired and killed his fellow police officer.

                The ultimate question, which was not fully answered in the Wil­liams case, may be stated as follows: Under what circumstances may a felon be charged with felony-murder if his co-felon dies in the per­petration of or in the attempt to perpetrate any one of the felonies enumerated in Florida's felony-murder statute?

                The Williams case established a test to determine when the felony-murder rule is applicable, holding that it may be applied only when an innocent person is killed as a result of circumstances set in motion by one or more persons acting in furtherance of an attempt to commit one of the felonies specified in the statute. Find­ing that in the principal case (Williams) the defendant was not pre­sent and was not an active participant, it would appear, in view of the suggested test, that in Florida, a felony may not be held respon­sible for the homicide of a co-felon committed during the perpetra­tion of one of the felonies specified under the felony-murder statute, at least when the co-felon is not an active participant.

                This obviously does not mean, however, that, under Florida law, felons may kill or murder each other with impunity. It is very difficult to visualize a situation where a co-felon who is the victim of a homicide may be characterized by the court as an innocent person so as to satisfy the test set forth.

                It would appear as though the courts in California have been upholding the application of the felony-murder rule where a co-felon is killed by one resisting a felony on his person. Taylor v. Superior Court of Alameda County,447 P. 2d 131 (1970). Other jurisdictions, however, have denied the application of the felony-murder rule in just such a situation. See People v. Garippo, 127 N.E. 75 (111.1920); Commonwealth v. Campbell, 89 Mass. 541(1863);People v. Austin, 370 Mich. 12, 120 N. W. 2d 766 (1963); People v. Wood, 167 N. E. 2d 736 (N. Y. 1960);Commonwealth v. Redline, 137 A. 2d 472 (Pa. 1958).

                In State v. Aguiar, 392 So. 2d 944 (Fla. 3d DCA 1980) the Court held that to be charged with first degree felony murder, a de­fendant must have participated in the offense, and mere involvement as a planner constitutes only Second degree felony murder.

                The following cases have upheld the use of the felony-murder rule in instances where the deceased, a police officer, was killed by an individual resisting a felony in which the defendant was a partici­pant: People v. Podolski, 52 N.W. 2d 201 (Mich. 1952); Johnson v. State, 386 P. 2d 336 (Okla. 1963).            

                Jurisdictions holding to the contrary, i.e., denial of the use of the felony-murder statute upon a co-defendant when a police officer is killed by one resisting a felony, include: State v. Andreu, 222 So. 2d 449 (Fla. 1st DCA 1969);Commonwealth ex rel. Smith v. Myers, 261 A. 2d 550 (Pa. 1970).

                Wilson v. State, 68 S W. 2d 100 (Ark. 1934), stands for the proposition that a defendant who was a participant in a felony may be held responsible for first degree murder when a victim or a by­stander is killed by one resisting a felon. In another Arkansas case, Johnson v State 482 S. W. 2d 600 (Ark. 1972), the court upheld the felony-murder rule's application in a situation where three men entered the victim's house. The victim's father, awakened by sounds, picked up a gun and interrupted the defendant during the apparent burglary of the home. The defendant fired a weapon at the father, who returned fire. The evidence indicated that the defendant took the victim, swung her around as a shield, and she was ultimately killed by a shot fired by her father. The Arkansas court applied the felony-murder doctrine in this case and held that the defendant intruder could be convicted of first degree murder.

                The following cases stand for the proposition that the felony ­murder rule may not be applied in a situation where an innocent bystander or victim is killed by a shot fired by one resisting the felony: Butler v. People, 18 N. E. 338 (Ill. 1888); Commonwealth v. Moore, 88 S. W. 1085 (Ky. 1905); State v. Garner, 238 La. 563, 1 15 So. 2d 855 (La. 1959).

                Murder in the first degree or, as it is sometimes referred to, "premeditated murder," involves the essential element of malice aforethought. The element of premeditation, or malice aforethought, involves a prior intention to do the act in question. There is no rule which has been laid down by any court in the State of Florida requir­ing any particular period of time during which the intent to kill must be formed and remain with the defendant. Hernandez v. State, 273 So 2d 130 (Fla. 1st DCA 1973). The fully formed, conscious intent to kill must exist, however, in the mind of the perpetrator a suffi­cient length of time to permit reflection. Weaver v. State, 220 So. 2d 53 (Fla.2d DCA 1969).

                The Hernandez case cited above also stands for the proposi­tion that in proving premeditation, the jury may rely on circumstan­tial evidence, and they may be able to infer from the evidence, such as the nature of the weapon used, the manner in which the murder was committed, and the nature and manner of the wounds inflicted, that there was a premeditated design to kill.

                Obviously, in a murder case which involves the premeditated design to kill another human being, one must be able to prove that a human being is dead as the result of the criminal agency of ano­ther. Therefore, in all murder and manslaughter cases, the testimony of the medical examiner regarding cause of death is essential. The state must be in a position to affirmatively negate that death could have occurred as the result of natural causes. Once having proved this, i.e. that death was the result of the criminal agency of ano­ther human being, the state must go forward with competent evi­dence to prove that the individual charged was the person responsi­ble for the death.

                While it is extremely helpful to have the body of the deceased in proving a homicide case, it has been held in most jurisdictions that the body or examination by a medical examiner is not absolute­ly essential to a conviction for some degree of murder. The fact that the victim is dead and that he dies as the result of the criminal agency of another may be proved by solely circumstantial evidence. However, all of the rules applying to circumstantial evidence would be in force in such a case, i.e., the circumstantial evidence must lead unerringly to the conclusion that the defendant is guilty. Obviously, proving that a homicide has occurred and that the defendant is re­sponsible for same when the body cannot be produced and there are no witnesses is an extremely difficult proposition.

                In the case of Enmund v Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) the United States Supreme Court ruled that the death penalty is reserved  only for the person who actually plans, premeditates and participates in the death of another human being. Thus when prosecution is undertaken under the theory of felony murder, and it can be shown that the defendant was not the actual killer, nor did he intend the death, capital punishment may not be imposed.

                Homicide cases are sometimes based exclusively upon circum­stantial evidence. In McArthur v. State, 351 So.2d 972, (1977), the Florida Supreme Court expressed some very difficult guide lines re­garding prosecution of that type of case. Significant portions of the decision are cited below:

 

                                We come to appellant's last and principal contention be­fore us, that as a matter of law there was insufficient evi­dence of her guilt to support her conviction. Appellant and the State agree to the legal standard to be applied in cases where a conviction is based on circumstantial evi­dence, as here, but they sharply disagree as to the appli­cation of that standard to the record in this case.

 

                                A review of prior decisions of this Court in similar cases is not helpful to the analysis required here, since the nature and quantity of circumstantial evidence in each case is unique. Moreover, while we have examined all of the evidence in the record before us, we can see no jurispru­dential value in a lengthy recitation of that evidence in this opinion. A lengthy summary will suffice.

 

                                In general, the jury received two categories of circum­stantial evidence - scientific and non-scientific. Our study of both types leads us to conclude that, on balance, neither is inconsistent with innocence.

 

                                The non-scientific evidence in the record, consisting of witness testimony from the funeral home owner, ambu­lance drivers, police officials, and a local merchant is rea­sonably consistent with the version of events which ap­pellant conveyed to investigating officers when they first arrived at the scene of her husband's death. She had told the officers that her husband had been concerned about her and their child's safety during his many absences, and that he had asked her to take out and check a gun which had been purchased two years before, in order to be sure she could handle it. While her husband lay in bed on his left side, she sat with the gun indian-style on the bed facing him, half on a pillow and half off. She told the officers that she had forgotten how the gun functioned and was fum­bling with it, apparently while it was still inside a cloth bag. Her husband became impatient, grabbed for the gun, it went off, and he was shot in the head.

 

                                Appellant related the same outline of events to each other person who inquired as to what had occurred, ex­cept to one officer who stated that he was told the "gun fell, hit her knee, and went off." Although this officer was present at the scene of death with others who received a different explanation, no inquiry was made as to the conflict in statements, and the one officer's recitation is the only conflicting explanation in the record. Another wit­ness to the same conversation in fact had no recollection of this statement by appellant.

 

                                All attempts by the State and by the defense to elicit from witnesses more details of appellant's statements at the time of death were unsuccessful. Based on the non­scientific conflicting evidence, we cannot accept the State's view that all reasonable hypotheses of innocence is incompatible with the record.

 

                                Both sides introduced fairly complex scientific evi­dence to explain or defeat appellant's hypothesis of an acci­dental shooting. Experts testified that it would have been possible for the gun to fire accidentally if Mr. McArthur had grabbed for the gun and any one of the three alterna­tive acts had occurred: (1) he had hit the trigger while the hammer was in a full-cocked position, (2) he had caused the hammer to be released while the gun was held partially cocked by appellant or (3) he had hit against the hammer, pushed it to a partially cocked position and then it auto­matically fell back. The gun also might have fired accidentally if it had been held upside down in the bag with portions of the cloth wrapped around the hammer or trigger in a particular manner, and if Mr. McArthur had grabbed and pulled the bag. There is no evidence that the gun had been or had not been in the full-cocked position when appellant was fumbling with it.

 

                                The gun was fired at a distance of about seven inches from Mr. McArthur, which is consistent with appellant's theory that Mr. McArthur leaned forward to grab for the gun. The presence of smudge marks (cylinder flare) on the underside of one pillow show that the gun was fired when very close to the pillow, another fact consistent with ap­pellant's contention that she was sitting partially on the pillow, thereby causing the other half to rise slightly. (The location of these marks, we recognize, is also consistent with the State's suggestion that she was holding the gun close to the pillow when she intentionally murdered her husband. The presence of barium and antimony on Mr. McArthur's hands is consistent both with the gun hav­ing been fired intentionally while his were raised in a de­fensive posture, as the State suggests, and with the gun having fired accidentally when one of Mr. McArthur's hands hit the hammer as he braced his weight and leaned forward to grab the weapon.

 

                                The angle by which the bullet entered Mr. McArthur's head, and the pattern of blood on the wall, are consistent both with his leaning forward to grab the weapon and ap­pellant's having shot him while his head was raised at least one foot off the bed. Similarly, the pattern of blood on the pillow was consistent with appellant's version of the pillow's placement where she was sitting.

 

                                From the totality of scientific and non-scientific evi­dence at appellant's trial, we are forced to conclude that the prosecution's proof of Mr. McArthur 's intentional murder was not inconsistent with his accidental death. The jury could reasonably have concluded, and obliviously did conclude, that it was more likely that appellant murdered her husband than that she did not. Yet, "even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence." On this record appellant's innocence has not been disproved. Only she knows the truth, and it was and is her constitutional right not to offer her explana­tion, her demeanor, her candor and her credibility to the jury. The State simply did not carry its burden of proof. Our jurisprudence and the justice of the cause require that the conviction entered below be reversed and that appel­lant, if the State so elects, be afforded a new trial.

 

                                                                                          End of Opinion

 

2. Murder in the Second Degree

 

                In Florida, the unlawful killing of a human being when perpe­trated by any act eminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree. When a person is killed in the perpe­tration of, or in the attempt to perpetrate any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or un­lawful throwing, placing or discharging of a destructive device or bomb, aggravated child abuse, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second de­gree.

                The phrase "depraved mind," used in the statute defining sec­ond degree murder; has been defined by the courts as a state of mind which is equated with malice in commonly understood terms of ill ­will, hatred, spite or evil intent. Smith v. State, 282 So. 2d 179 (Fla. 1973) held that one of the essential elements of the crime of second degree murder requires that the person charged evince the depraved mind at the time of the commission of the offense.

                Note that in response to the confusion relating to a felony-mur­der, Florida's statute makes unlawful killing first degree, while the second degree murder statute relates to any death. Presumably then, this would include deaths occurring during an enumerated felony which in and of themselves are lawful.

                An interpretation of the Felony Murder Statute by the Supreme Court of Florida came in Mikenas v. State,367 So. 2d 605 (Fla. 1978):

 

                                We review this case to determine whether the appellant was convicted and sentenced to death for first-degree mur­der and second-degree felony-murder in accord with stat­utes and court decisions. We affirm the convictions, but we remand the case to the trial court for resentencing be­cause of improper application of aggravating circumstances. Article V, Section 3(b)(1), Florida, Constitution.

 

                                On November 3, 1975, the appellant, Mark Mikenas, his brother, Vito Mikenas, and a friend, Mark Rinaldi, robbed a convenience store in Tampa, Florida. During the robbery the appellant carried a .38 caliber revolver. There were no customers in the store during the robbery. Upon entering the store, the appellant and his co-felons forced the lone store clerk into a back room of the building. Unknown to the robbers, Gary Barker, an auxiliary deputy sheriff, ob­served the robbery from a hidden position in the store.

 

                                When an automobile unexpectedly arrived at the front of the store, appellant and his co-felons tried to exit the store through a back door. Barker, with drawn pistol, stopped them and placed them under arrest.

 

                                Seconds later, Anthony Williams, an off-duty Tampa po­liceman in civilian attire, came into the store through the front door. Barker called to Williams for help and informed him that a robbery was underway. Immediately thereafter, appellant and Barker fired at each other with both missing. Barker later killed Vito and wounded the appellant as they ran towards the front of the store. As appellant was falling to the floor, he shot and killed Anthony Williams, the Tampa police officer. Ann Williams, the wife of Anthony Williams, herself a police officer in uniform, arrested ap­pellant. Barker arrested Rinaldi.

 

                                The indictment charged the appellant and Rinaldi, in two counts, with first-degree murder of Anthony Williams and with second-degree murder of Vito Mikenas who "was killed by a person or persons other than the person or per­sons engaged in the perpetration or attempt to perpetrate said robbery. "

 

                                The appellant pleaded guilty to murder in the first degree for the death of Anthony Williams and pleaded nolo con­tendere to the charge of second degree murder of his bro­ther Vito. Appellant reserved the right to appeal the appli­cability of Section 782.04(3), Florida Statutes (1975), the second-degree felony murder statute, applied to the facts of this case.

 

                                * * [material omitted] * *

 

                                Section 782.04(3), Florida Statutes (1975), reads as fol­Iows:

 

                                When a person is killed in the perpetration of, or in the at­tempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt toperpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084. ( Emphasis added.)

 

                                The appellant contests that Section 782.04(3), Florida Statutes (1975) is inapplicable to the facts of his case. He, in effect, says that it is clear from the evidence that Barker, the auxiliary deputy sheriff, shot and killed Vito. If this is true, he says, and Vito is a co-perpetrator, no one can be charged with the murder of Vito. He argues that only "innocent" persons killed during the perpetration of a felony were intended by the Legislature to be included in the phrase "a person is killed." From this posture, he asserts that his motion to dismiss should have been granted .

 

                                The language of Section 782.04(3) is not ambiguous or vague. It refers to "a person" and must mean "any person." If the Legislature had intended something other than this, it could have inserted the word "innocent."

 

                                We are mindful that State v. Williams, 254 So. 2d 548 (Fla. 2d DCA 1971), held that under Section 782.04(1), Florida Statutes, the first-degree felony-murder statute, only the death of innocent persons is sufficient to sustain a charge of first-degree felony-murder against a felony perpetrator. The Second District Court stated in that case:

 

                                The test we suggest is predicated upon the obvi­ous ultimate purpose of the felony murder stat­ute itself which is, we think, to prevent the death of innocent persons likely to occur during the commission of certain inherently dangerous and particularly grievous felonies. (At 550)

 

                                Since we are here concerned with subsection (3) of 782.04 the second-degree felony murder statute, rather than sub­section (1), the first-degree felony murder statute, we need not determine whether the reasoning and rationale in State v. Williams, supra, is correct. We reserve decision on that point until the question is squarely presented. It is suffi­cient here to hold that there is nothing in the clear language or history of Section 782.04(3) which limits its applica­tion to innocent persons killed by one perpetrating or at­tempting to perpetrate a felony.

 

                                Accordingly, the convictions are affirmed, and the case remanded to the trial court for resentencing without fur­ther deliberations by a jury.

 

                                It is so ordered.

 

                                                                                          End of Opinion

 

                In State v Wright, 379 So. 2d 96 (Fla. 1980). The Supreme Court of Florida held that a surviving co-perpetrator of a robbery, is guilty of a felony murder in the Second Degree, when a police officer shoots and kills another co-perpetrator during the course of a robbery. In State v. Pinder, 375, So. 2d., 836 (1979), the Supreme Court of Florida held that the State is not required to allege felony murder in the indictment. It may prosecute the charge as a premeditated First Degree Murder and prove it under the theory of felony murder. In Mahaun v. State, 377, So. 2d. 1158 (1979), the Supreme Court of Florida held that where the underlying felony is an essential element of the felony murder, a defendant cannot be sentenced for both crimes. Thus for a person charged with the underlying felony and with felony murder, only one sentence may be imposed, even if the jury finds the defendant guilty of both charges.

 

3. Murder in the Third Degree

 

                When an unlawful homicide takes place during the perpetration of any felony not enumerated under the first degree murder statute, and falling under the felony-murder rule in Florida, it is murder in the third degree.

                In State v. Amaro, 431 So. 2d 999 (Fla. 2d DCA 1983) it was held that a defendant could be convicted of murder in the third de­gree when, immediately after apprehension for a drug deal, a co-felon shot and killed a police officer while trying to escape.

 

4. Manslaughter

 

                The killing of a human being by the act, procurement or culpa­ble negligence of another where such killing is not justifiable or excu­sable, constitutes manslaughter.

                Voluntary manslaughter is an intentional killing but does not contain the element of premeditated design. The elements of volun­tary manslaughter include: (a) adequate provocation (b) resulting in a killing (c) done in the heat of passion (d) before cooling. Thus, an individual who kills another in the heat of passion without a premed­itated design to kill that person may be charged with manslaughter. It is a question of fact for the jury as to whether or not the individual was acting upon sufficient provocation in the heat of passion when the victim was killed. At the time of the homicide, the defendant must still be acting under the heat of passion. If he has cooled to the point where he knows what he is doing, the homicide is in cold blood and would be considered some degree of murder. Lapse of time be­tween provocation and the actual killing is important in the jury's determination as to whether or not the individual defendant has cooled to the point where he should be held responsible for some degree of murder.

                Involuntary manslaughter is an unintentional killing. This re­sults from the commission of an unlawful act or from culpable negligence. The best example of involuntary manslaughter is a case where an individual is negligent while driving his car at 75 miles per hour in a 25 mile per hour zone, runs a stop sign, and strikes and kills a thirteen-year-old boy on his bicycle.

                Issues of proximate cause, and the question of whether a petty theft can give rise to a charge of manslaughter, were addressed by an appellate court in Todd v. State, 17 FLW D 369 (Fla. 5th DCA 1992).

 

                                On March 18, 1990, appellant entered the Lighthouse Church and stole $110.00 from the collection plate.  The theft was witnessed by several members of the congregation, one of whom, Richard Voegtlin, took off in his car in pursuit of appellant.  During the pursuit, Mr. Voegtlin, who had a preexisting heart condition, began to experience cardiac dysrhythmia.  He lost control of his vehicle, collided with a tree at low speed and died of cardiac arrest.

 

                                The state charged appellant with manslaughter, alleging that he caused the death of Mr. Voegtlin by committing the misdemeanor offense of petty theft which caused Mr. Voegtlin to pursue him in order to recover the stolen property. Appellant filed a motion to dismiss, asserting that, because it cannot be said with any reasonable degree of medical certainty that Mr. Voegtlin died as a result of chasing appellant, because Mr. Voegtlin was at high risk of having a heart attack due to his preexisting condition, and because the appellant had no knowledge of this preexisting medical condition, the manslaughter charge should be dismissed.  The trial court denied the motion to dismiss.  We reverse.

 

                                The issue presented to us, is whether Florida recognizes the misdemeanor manslaughter rule.  Reduced to basics, the misdemeanor manslaughter rule is that an unintended homicide which occurs during the commission of an unlawful act not amounting to a felony constitutes the crime of involuntary manslaughter. It is sometimes referred to more broadly as "unlawful act manslaughter"....

 

                                **material omitted**

 

                                Florida courts by simply interpreting the statutory definition of manslaughter ("[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification..."), appear always to have understood the importance of causation as an element of this type of homicide.  Our courts also have appreciated the foreseeability element of causation.  In Tipton v. State, 97 So. 2d 277 (Fla. 1957), the defendants had gotten into an argument with a gas station attendant about whether he would cash a check for them.  They either pushed or touched him in a threatening way.  The attendant fell to the floor and died of a heart attack.  The Supreme Court, reversing conviction for manslaughter observed:

 

                                `Consideration of the act and its surroundings at the time of its commission, not of the results alone, should determine criminal responsibility for manslaughter under the Florida homicide statute.  It is necessary for the act to result in the death of a human being under the definition of homicide; but this does not relieve the courts of the duty to study the act itself to determine whether the punishment for manslaughter should be applied.  This conclusion does not require the use of shibboleths, maluum prohibitum and malum per se.  The statute itself provides far surer guideposts.'

 

                                **material omitted**

 

                                In 1989 the First District Court of Appeal had occasion to consider a case, Penton v. State, 548 So. 2d 273 (Fla. 1st DCA 1989), which was in many ways similar to the case that we have under review here.  There the appellant and a codefendant burglarized the garage of a private residence, stealing two bicycles.  The homeowner, alerted to the burglary by barking dogs and shouts from his son that someone was stealing the bikes, ran out of the house.  After chasing appellant approximately twenty five to thirty feet, the homeowner fell dead in the middle of the street, his death apparently caused by a release of fat emboli into his blood stream.  The defendant was charged under the felony murder rule but was convicted by the jury of manslaughter.

 

                                The question presented to the First District Court was whether the evidence was sufficient to support a manslaughter conviction.  The Penton court focused on the issue of causation, concluding initially that, under Florida law, the "two affirmative elements of manslaughter [are]: (1) the killing, and (2)  the causative link between the death and the act, procurement or culpable negligence of the defendant."  The court held that there had to be a showing by the state that the defendant actually performed some affirmative act that caused the death to occur.

 

                                **material omitted**

 

                                In this case, even if it were assumed that the stress of pursuit brought on the heart attack, it cannot be said that the petty theft was the legal cause of Mr. Voegtlin's death.  The crime itself was a minor property offense.  There is no suggestion of any touching or any threat to anyone's person.  This is not even a case, like a purse snatching, where violence was necessary to produce the theft.  Nor is it asserted that Mr. Voegtlin died from fright or horror at witnessing the crime. The state's traverse specifically asserts that it was the pursuit that caused the fatal heart attack.  Although the petty theft did trigger a series of events that concluded in the death of Mr. Voegtlin and was, in that sense, a "cause" of death, the petty theft did not encompass the kind of direct, foreseeable risk of physical harm that would support a conviction of manslaughter.  The relationship between the unlawful act committed (petty theft) and the result effected (death by heart attack during pursuit in an automobile) does not meet the test of causation historically or currently required in Florida for conviction of manslaughter.

 

                The court has thus said that in order to justify a conviction for manslaughter, the unlawful act must be one which reasonable men could conclude included an element of dangerousness, such that reasonable people recognize the act as one which would subject the other person to at least the risk of some harm.  

                An attempt to commit suicide, or aiding another in an attempt to commit suicide, is a crime in Florida.

 

5. Vehicular and Vessel Homicide

 

                Florida law provides that the killing of a human being by the operation of a motor vehicle or vessel by another in a reckless manner likely to cause the death of, or great bodily harm to another is a felony of the third degree.

                In Florida, causation is an element of DUI Manslaughter. How­ever, the operator of the vehicle does not have to be the sole cause of the collision and death. The statute only requires that the operation of the vehicle could have caused the accident. Magaw v. State, 537 So. 2d. 564 (1989).

                The elements of vehicular/vessel homicide are:

                (1)           The victim is dead.

                (2)           The defendant operated the vehicle or vessel in a reckless manner.

                (3)           The reckless operation of the vehicle/vessel was the proximate cause of the victim's death.

 

6. Self-Defense

 

                Self-defense is a defense to murder only when the situation is such as to induce a reasonable prudent person to believe that danger was imminent and that there was a real necessity for the taking of a life. Gill v. State, 266 So. 2d 43 (Fla. 3d DCA 1972).

                In the case of Wilbert v. State, 273 So. 2d 769 (Fla. 4th DCA 1973), the conviction of a defendant charged with first degree mur­der was upheld in a situation where a police officer, the deceased, was attempting to make an illegal arrest. The court held that the defendant had the right only to use reasonable force in resisting the illegal arrest, and would not have been justified in using unnecessary or deadly force.

                Florida follows the theory of non-retreat in one's home. In Watkins v. State, 197 So. 2d 312 (Fla. 4th DCA 1967), the court adhered to the doctrine of non-necessity of retreat in the situation where both parties are on the premises in question with equal authority and control. For the purposes of this doctrine, a person's home is his or her ultimate sanctuary.  Watkins was overruled by Conner v. State, 361 So. 2d 774 (Fla. 4th DCA 1978) to the extent that a “castle doctrine” instruction to the jury is not necessary if  both occupants have equal right to be present in the home.

                Mere words are never sufficient provocation to reduce murder to voluntary manslaughter. Mere words, no matter how inflamma­tory, never justify the use of deadly force.

                It is possible to downgrade an offense from murder in the first degree to manslaughter when the death results from a sudden af­fray or fight, unless a deadly weapon or instrumentality is used as the agency of death.

                Most courts require a defendant to make a reasonable effort to retreat before using deadly force. However, as we see in Florida, there is no necessity to retreat in one's home, nor is there the neces­sity of retreat prior to using deadly force to defend oneself from at­tack if such retreat would place the individual in greater danger. The defender must not be the aggressor in this particular circumstance. The aggressor is the person who first uses force which can reasonably be construed as deadly.

 

C. Assaults

 

                At common law all assaults were considered to be misdemean­ors. An assault is an attempt or offer to do harm, while battery is the doing of the harm. A completed battery, like any other crime, includes an attempt which in this case is an assault.

 

1. Simple Assault

 

                Simple assault is an attempt or offer with unlawful force or vio­lence to do injury to another. The elements of simple assault are:

 

                (i)            Some overt conduct on the part of the accused which would indicate he was about to commit battery (e.g., raised fist);

                (ii)           The apparent present intent to injure as determined by the victim must be shown;

                (iii)         The intent, or apparent intent, must be to inflict injury at that time, i.e., the time the threat is made, and

                (iv)          It must appear to the victim that the accused was presently able to inflict injury. In Florida, simple assault is a misde­meanor of the second degree.

 

2. Battery

 

                A battery is defined as an unlawful touching, however slight, done to another person directly or indirectly, in an angry or insolent manner. The touching done in any such manner will be sufficient to charge battery. Battery in Florida is a misdemeanor of the first degree.

                A battery upon a law enforcement officer, campus security offi­cer or intake officer, in the line of duty, constitutes a felony of the third degree.

 

3. Aggravated Battery

 

                Under Florida law, any person who commits a battery upon another person and intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement, or uses a deadly weapon during the commission of the battery, is guilty of aggravated battery, which is punished as a felony of the second degree.  Florida law makes it a third degree felony to kill or do great bodily harm to a police dog.

 

4.  Aggravated Assault

 

                Whoever assaults another with a deadly weapon, without the intent to kill, is guilty of aggravated assault, which is punishable as a felony in the third degree. Note that a deadly weapon must be shown. A firearm is a deadly weapon. A deadly weapon is any wea­pon which when used in the manner intended could inflict death or great bodily harm. For aggravated assault to apply, it is not neces­sary that there be a touching or a battery.

                An assault with the intent to commit any particular type of felony involving violence to the person is chargeable in Florida under the general Aggravated Assault Statute.

 

D. Sexual Battery

 

                In Florida, what is commonly known as rape and other sexual offenses are covered generally by the Chapter entitled  Sexual Battery (Florida Statute 794). This statute provides that a person of the age of 18 years of age or older who commits sexual battery upon, or injures the sexual organs of a person 11 years or younger in an attempt to commit sexual battery upon said person commits a capital felony in Florida. If the offender is under the age of 18, that person is guilty of a life felony. Further, the statute pro­vides that any person who commits a sexual battery upon an indivi­dual over the age of 11 years without that person's consent and in the process thereof uses or threatens to use a deadly weapon, or uses actual physical force likely to cause serious personal injury is guilty of a life felony. A person who commits sexual battery upon an indi­vidual over the age of 11 years without that person's consent, absent the above, is generally guilty of a felony of the first degree. When a person commits sexual battery upon an individual over the age of 11 years without that individual's consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury, the crime is punishable as a felony of the second degree.

                Rape traditionally is defined as ravishing or having unlawful carnal knowledge of another individual. Carnal knowledge means penetration generally of the vagina by the penis. Note that the Flori­da statute is not restrictive in this regard and thus would include what normally was referred to as common law sodomy. Under the traditional definition of rape, the slightest penetration is sufficient, and it is not essential that there be any emission. Under the common law a man could not rape his wife even though he may on occasion need to use physical violence to accomplish his purpose. Modern statutes in some states presently would support such a charge. The law requires generally that physical violence or the threat of physical violence be utilized and that the individual victim resist to the best of his or her ability under the circumstances. This situation would vary under different factual situations.

                Rape is the type of crime for which consent is often raised as a defense. Therefore, in order for the charge to lie, the victim cannot give con­sent, and the courts have held that if the victim is intoxicated to an appreciable degree, involuntary sexual battery or a forcible rape charge would still stand.

                Many statutes have specifically replaced the traditional term "female" with the term "person." This was designed by the legisla­ture to permit prosecution in offenses involving sodomy or what used to be known as crimes against nature.

                Most rape or involuntary sexual battery offenses involve basi­cally the testimony of the prosecutrix, possibly the testimony of the defendant, the testimony of the medical examiner and the testimony of any witnesses to whom the victim (prosecutrix) would have re­ported the offense.

                In Paramore v. State, 238 So. 2d 604 (Fla. 1970), the court stated that the testimony of the prosecutrix in any rape prosecution must be rigidly scrutinized, especially as to the nature and extent of the force used, and as to whether or not consent was given yielded and, in doing so, the jury can consider such facts and circumstances surrounding the alleged assault as the strength of and physical devel­opment of the prosecutrix, and the evidence or lack of evidence of injuries and other factors.

                This particular matter was discussed at length under Texas law in the case of Lomax v. State, 144 S.W. 2d 555 (Tex. 1940). Portions of the decision appear below:

 

                                All standards of life are not the same; some people act from one impulse, some from another.

 

                                Evidently Mrs. Stanford was not expecting appellant's visit, nor was same prearranged. She did not know appellant, nor did he know her. He had, however, inquired who lived in this tent house, and ascertained the fact that Mrs. Stan­ford's husband was a log cutter, and doubtless reasoned therefrom that he was cutting logs in the woods. Soon thereafter he abandoned his intended journey and came back in the general direction of her home. He prepared himself for a rape by force and threats by taking off his clothing, covering his head with this old quilt, and posses­sing himself of an iron pipe about 36 inches long. Mrs. Stanford was asleep, sick in bed, a victim of pellagra, and as he approached her he awakened her in a threatening attitude, and with an express threat to take her life if she screamed or hollered.

 

                                Faced with such a momentous decision, it lies not in this court's judgment to say that she should have pitted her puny strength against his, armed as he was with such a weapon, and thus given up her life to protect her honor from what her judgment told her was the ravishment of her living body. Instead she took what probably seemed to her to be the only method of saving her life.

 

                                Upon the accomplishment of her ravisher's purpose, her conversation only evidenced the carrying out of her pur­pose of the preservation of her life. Immediately upon be­ing relieved of his threats, she ran in her stocking feet to her neighbor's home about four hundred yards away and gave the alarm, carrying with her a useless shotgun. That this act was done without her consent is plain to our rea­soning. Why, if she had consented thereto, did she run to the neighbor's and give the alarm? Why take a shotgun with her? Why say anything at all if she had consented thereto? Why not hide her indiscretion rather than imme­diately inform on her ravisher?

 

                                Again, if appellant though his act was consented to by Mrs. Stanford, why the disguise? Why the running away from the tent house? Why the presence of the iron pipe in his hand, and left on the bed?

 

                                Rape can be committed on a woman by either force, threats or fraud. See Art. 1183, P.C. `The threat must be such as might reasonably create a just fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength and other circumstances of the case.' Art. 1185, P.C. Under the rule as laid down by the above quoted article we think that the threat, accom­panied as it was by the exhibition of such a lethal weapon, would be sufficient to measure up to the above statutory requirement. We think the testimony is sufficient to sus­tain this verdict.

 

                                                                                          End of Opinion

 

                In the Florida decision of Dean v. State, 265 So. 2d 15 (Fla. 1972), the Court found that the prosecutrix' testimony that she had been forced at gunpoint to submit to sexual intercourse with the de­fendant, and that she did not offer further resistance because she be­lieved the defendant would kill her if she did so, amply supported a display of force necessary to sustain a forcible rape conviction.

                In Paramore v. State, 238 So. 2d 604 (Fla. 1970), testimony on the part of the prosecutrix that she had intercourse with the defend­ant while his companion held a gun on her, and that she did not physically resist because they threatened to kill her if she did not do as they told her and that she was afraid they would carry out their threats, justified a rape conviction because the jury could find as a matter of fact she committed intercourse only because of fear.

                Any penetration, however slight, is suffi­cient to constitute the crime of rape and there is no necessity that there be an emission of seed.

                In any prosecution for rape, an extremely important element is the issue of outcry. The fact that the alleged victim of the rape made a report of the rape at the first available opportunity may be admitted into evidence in an attempt to corroborate her testimony that she had been raped. Obviously, then, her failure to immediately re­port the incident at her earliest opportunity may be used to impeach her credibility.

                In a rape prosecution, the character of the victim may be in issue to the extent of her prior sexual conduct.

                In Askew v. State 118 So. 2d 219 (Fla. 1960), the court held that voluntary intoxication is a defense to the crime of rape only when intoxication produces a mental condition of insanity (inability to form the required intent).

                The manner of the victim's dress is not admissible to attempt to justify sexual battery.  Neither is the fact that the defendant used, or that the victim requested a prophylactic device admissible.

                Florida protects individuals who are mentally or physically handicapped and thus incapable of giving consent or offering resistance.

                The Florida law recognizes that to require a victim to resist, is to place the victim in greater danger. Therefore, "consent" shall not be deemed or construed to mean the failure of the victim to offer physical resistance to the offender.

                Any person who falsely accuses a law enforcement or corrections officer of sexual battery is guilty of a felony of the third degree.  The Florida Sexual Predators Act (F.S. 775.21-775.23) provides that sexual offenders shall serve almost all of their prison sentence.

                The Act provides for the notification of the community of the prisoner's release, and requires registration with the Florida Department of Law Enforcement.  For sexual predators released for an offense committed after October 1, 1995, there is a mandatory court hearing in the county where the person lives to determine if he poses a threat to the public.

                If the Court finds that the person does pose a threat, the police chief/sheriff is notified and they are required to notify the public by newspaper publication of the finding.  The notice includes name, description, photograph, place of residence, the nature of the offense and the age of the victim.

 

E. Statutory Rape (Unlawful sexual activity with certain minors)

 

                Florida Statute Chapter 794 provides that any person who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree.  Statutory rape, (or Romeo and Juliet Law) as this section is commonly called, does not require the use of force. Even though the female may consent, the offense still lies so long as the victim has not had the disabilities  of nonage removed by law. The victim’s prior sexual conduct is not a relevant issue inn a prosecution under this law. In these instances, the defendant is held to act at his/her own peril and mistake of fact concerning the age, previous marital situation, etc., will not provide a defense for the act.

 

F. Unnatural and Lascivious Act

 

                Whoever commits an unnatural or lascivious act with another person is guilty of a misdemeanor.  In Florida, breast feeding a baby in public is not a violation (F.S. 800.03).

 

G. Exposure of Sexual Organs

 

                It shall be unlawful for any person to expose or exhibit his sexual organ in any public place or on the private premises of ano­ther, or so near thereto as to be seen from such private premises in a vulgar or indecent manner.  InDuvallon v. State, 404 So.2d 196, 197 (Fla. App. 1 Dist. 1981), the court held that the vulgar and indecent requirement reflects an elements of intent in the statute.  In Payne v. State, 463 So.2d. 271 (Fla. App. 2 Dist. 1984), the court dismissed the charge of indecent exposure against an individual for urinating in a public place.  The court stated that the act of exposure must involve, "an unlawful indulgence and lust eager for sexual indulgences."  The court pointed out the more appropriate charge would have been disorderly conduct.

 

                This crime is considered a misdemeanor in Florida.

 

H. Lewd and Lascivious Acts

 

                Any person who shall handle, fondle, or make an assault upon any child under the age of 16 years, in a lewd, lascivious, or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such a child without intent to commit involuntary sexual battery shall be guilty of a felony in the second degree.

                One of the difficult problems in prosecuting lewd and lascivious acts in the presence of children under the age of 16 years, of course, is that many times the acts are committed in the presence of young children and it is impossible to corroborate or substantiate the testimony of the child. In Wilson v. State, 282 So. 2d 667 (Fla. 2d DCA 1973), an appellate court ruled that the testimony of a nine-year-old child was sufficient without any corroborating witnesses to sustain a conviction for committing a lewd and lascivious act upon the child .

                In Pennington v. State, 219 So. 2d 56 (Fla. 3d DCA 1969), the court held that the testimony of a seven-year-old child who, while under examination, was not able to identify the state in which she lived, what telling a lie meant, or that the defendant touched her in a lewd and lascivious manner, was insufficient to support the charge.

                In order to qualify a witness to give testimony in a criminal case, it is necessary that the witness convince the court that the wit­ness is truthful and is of such age or mental development that the witness knows the meaning and the significance of the oath which he or she has taken.

                As part of the res gestae exception to the hearsay rule, it may be possible in certain instances to permit a parent's testimony as to what a young child told the parent immediately after the alleged incident while the child was in an excited condition.

(See also provisions for the introduction of hearsay evidence in child sex abuse cases under Florida's Evidence Code S. 90.803(23).

                Whether or not the particular conduct which is alleged qualifies as lewd and lascivious behavior is an issue for the court to decide before allowing the case to proceed to the jury for a consideration of guilt or innocence. Behavior which is commonly held to consti­tute lewd and lascivious behavior includes fondling of the sexual organs, fellatio, cunnilingus, or masturbation in the presence of a child.

                The Florida statutes provide that in the trial of any case, whe­ther civil or criminal, when any person under the age of 16 is testi­fying concerning any sex offense, the court may clear the courtroom of all persons except the parties to the cause, attorneys, secretaries, officers of the court, jurors and newspaper reporters.

                The utilization of expert medical testimony corroborating the victim's account of the crime is an essential investigative technique. The victim, wherever feasible should be examined immediately by a qualified physician (Medical Examiner when available).

 

I. Kidnapping and False Imprisonment

 

                The federal statute concerning kidnapping, which is known as the Lindbergh Law, applies when an individual is transported across state lines against his will for the purpose of being held for ransom.

                Under Florida law, kidnapping means forcibly, secretly, or by threat, confining, abducting, or imprisoning another person against his will and without lawful authority with intent to: hold for ran­som or reward: hold as a shield or hostage; commit or facilitate com­mission of any felony; inflict bodily harm upon or terrorize the vic­tim or another person; or interfere with the performance of any gov­ernmental or political function.

                It is also a felony in the State of Florida for any person, in vio­lation of a court order, to lead, take, entice, or remove a child bey­ond the limits of the State of Florida, when that person has personal knowledge of the existence of said court order.

 

                The essential elements of kidnapping involve:

 

                1.             The unlawful or forcible confinement of

                2.             Another person

                3.             Against his will

                4.             Removing or

                5.             Hiding that person

                6.             For the purpose of collecting ransom, holding as a shield or hostage etc.

 

                Kidnapping actually is nothing more than false imprisonment with the added requirement of asportation, i.e., movement or secre­tion of the victim, for the purpose of collecting ransom, terrorizing, facilitating commission of a felony, etc.

                Some jurisdictions have specific kidnapping statutes with refer­ence to an intent to commit a specific crime. The kidnapping law that exists in California is discussed in the decision rendered by the Supreme Court of California in 1952 in the case of People v. Chess­man, 238 P. 2d 1001 (Cal. 1952) as follows:

 

                                (I)n the crime of Kidnapping for the Purpose of Robbery,

                                a necessary element is the existence in the mind of the per-

                                petrator of the specific intent to commit robbery and un-

                                less such intent so exists that crime is not committed, but

                                no actual robbery need be committed, as the Kidnapping is complete once the individual is seized for the purpose of robbery.

 

                                Defendant, relying upon People v. Snyder (1940), 15 Cal. 2d 706, 708, 104 P. 2d 639, urges that the instructions were insufficient because the jury were also instructed generally that `To constitute criminal intent it is merely necessary that a person intend to do an act which, if com­mitted, will constitute a crime,' and that `The intent with which an act is done is manifested by the circum­stances attending the act, the manner in which it is done, the means used, and the sound mind and discretion of the person committing the act.' It is not reasonably proba­ble that the latter instructions caused the jury to misunder­stand the instruction as to the specific intent to rob. The Snyder case, which concerned materially different instruc­tions and a materially different crime, does not apply here.

 

                                * * [material omitted] * *

 

                                The trial judge instructed the jury that in prosecution for the various crimes here charged corroboration of the pro­secuting witnesses was not required. This instruction was correct. The undisputed evidence shows that the female victims were not accomplices, but were acting in fear of their lives, in the violations of section 288a; therefore, cor­roboration of their testimony was not required. (People v. Featherstone (1945), 67 Cal. App. 2d 793, 796, 155 P. 2d 685). But, defendant argues, the instruction that corrobo­ration was not required was equivalent to a direction to convict of the crimes charged, including those requiring specific intent, if the jury believed that defendant com­mitted the overt acts to which the prosecuting witnesses testified; therefore, he says, the instruction permitted conviction without proof of specific intent. On no ra­tional view of the instruction, either in or out of its con­text, could it have the meaning attributed to it by de­fendant.

 

                                                                                          End of Opinion

 

J. Robbery

 

                Robbery is a specific intent crime which contains all of the as­pects of an assault as well as a theft. When an individual illegally takes personal property of some value from another person or from his custody or control by the use of force or by the placing of that individual in fear; the crime of robbery has been committed. In order for the crime of robbery to be completed, there must be some taking or some movement of an item of personal property away from the person rightfully in possession thereof. It is possible for someone to be guilty of robbery even though he forcibly takes stolen property from the original thief. When the taking of the property is done with­out force or without placing an individual in fear, then that taking is theft. Robbery is considered a very serious offense.  In order for robbery to lie, the force used must precede or accompany the taking. If the force is applied after the taking of the property, then the perpetrator is guilty of the crimes of theft and assault, but not of rob­bery.

                In Florida, if in the course of committing the robbery, the of­fender carried a firearm or other deadly weapon, then the robbery is punished as a life felony. If no weapon is carried or displayed, the robbery is punished as a second degree felony.

In the case of Yarborough v. State, 295 So. 2d 114 (Fla. 2d DCA 1974), the use of force in so-called purse snatching is discussed.

                In any robbery, when force is not used, the facts must show that the victim gave up his property out of fear induced by the robber. When no violence is used and no threats to induce fear are made, no robbery exists.

                Picking a pocket or purse snatching is not robbery if no more force or violence is used than is necessary to physically rescue the property from a person who does not resist. But if the victim resists to any extent, and this resistance is met with physical force by the offender, then robbery has occurred.

 

K.  Carjacking

 

                Carjacking is defined as the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault or putting in fear.

                If during the course of the crime, a firearm or deadly weapon is carried, it is a first degree felony punishable up to life.  This would include the attempt to commit the crime, and during flight thereafter.

 

L.  Home Invasion Robbery

 

                A Home Invasion Robbery is any robbery that occurs when the offender enters a dwelling with the intent to commit a robbery, and does rob the occupants therein.

                Both Carjacking and Home Invasion Robbery are included as violent felonies for purposes of pre trial detention, and as crimes under the felony murder rule.