It appears to me that the indictment in this case was drawn under Sec. 5039, Rev. Gen. Stats., 7141 Comp. Gen. Laws, the general statute on the subject of manslaughter. It is true that in addition to the language necessary to constitute a charge under this statute the indictment embraces the following words: "And being at the time under the influence of intoxicating liquors." It was held in Cannon v. State, 107 Fla. 360, 91 So. R. 214, that these words are not sufficient to charge an offense under Chap. 9269 of the Laws of 1923, which makes it manslaughter where a person is killed by the operation of a motor vehicle by any person "while intoxicated." This Act was amended by Chapter 11809 of the laws of 1927 and it now appears as Sec. 7749 of Comp. Gen. Laws. However, the amendment did not change that provision of the statute involved here, and which was discussed in the Cannon case. The indictment was entirely sufficient to charge the crime of manslaughter under the general statute on that subject above referred to, and I think it was predicated upon that statute. The inclusion of the words "and being at the time under the influence of intoxicating liquor," does not, of course, invalidate the indictment. It may be treated as surplusage, *Page 994 though evidence that the defendant was under the influence of intoxicating liquor would be admissible as tending to support the charge of culpable negligence. It was held in the Cannon case that being under the influence of intoxicating liquors was not synonymous with being intoxicated; that, although all persons intoxicated by the use of alcoholic liquors are necessarily under the influence of such liquors, the reverse of the proposition is not true; but that a person may be under the influence of intoxicating liquors without being intoxicated in the usual and commonly accepted meaning of that word.

It is true that after the tragic accident, in which both occupants of the automobile were seriously injured, the defendant assumed full responsibility and sought to shield the young lady who was accompanying him at the time and absolve her from any connection with it, and his statement to the sheriff, while not going into details, might be construed to constitute a confession. And his testimony was somewhat along the same line, though he did finally state that he was not driving the car at the time. But his attorneys were evidently not deterred by this gallant gesture on the part of their client, and made a motion for a continuance on the ground of the unavoidable absence of a material witness — the young lady herself — whose attached affidavit frankly stated that she was driving the car at the time, and explaining in some detail the circumstances under which the fatal collision occurred.

I am of the opinion that the motion for continuance should have been granted. The motion, with the attached exhibits, showed that the defendant would have been able to prove by the absent witness that she and not the defendant was driving the car at the time the accident happened. The motion also alleged that the defendant would be able to show by the testimony of such witness that the defendant *Page 995 had not been drinking and was not intoxicated. This was evidence vitally material to the defendant and I think the motion shows a sufficient and bona fide effort on the part of the defendant to secure the attendance of such witness. The motion alleged that the absent witness resided in Gainesville, Florida; that the defendant had caused due process of the court to issue directed to said witness which said process was sent to the sheriff of Alachua County, Florida; that the affiant was informed and believed, service had been perfected upon the said witness in ample time to secure the attendance of said witness; that a telegram from the sheriff of Alachua County and also from a medical doctor was attached to the motion stating the inability of said witness to attend because of illness. The certificate of the physician appears to be entirely sufficient and the telegram from the sheriff corroborated it, and showed that he had received the subpoena in time. As Gainesville is not very far from Madison, where the trial was had, the subpoena was evidently served in ample time to have secured the attendance of the witness at the trial, if she had been able to come. Furthermore, an earlier issuance and service of the subpoena would not have prevented the illness of the witness.

To my mind the requiring of the defendant, on this showing, to go to trial without the benefit of this, his only witness, and whose testimony was so vitally important to the defendant, was reversible error.

I think the case should be reversed. *Page 996