I am unable to agree with the views expressed in the majority opinion in this case.
I do not think that "the intent to kill" is a necessary element of the offense of manslaughter. In fact, the absence of this element is the factor which differentiates manslaughter from murder in any of its degrees. Manslaughter is not murder. It is a statutory offense and may be committed in many different ways under the provisions of our several statutes without the element of "intent to kill" entering into or constituting any necessary element to be either alleged or proved. This is not in conflict with what was said in Newbern v. State, 73 Fla. 1064, 75 So. 581. It was there held that the element of "an intent to commit manslaughter" upon the person of the assaulted party must be shown. But this is not equivalent to saying that the element of "intent to kill" must be shown. What the language used in that case means is that it must be shown that the party committed the act with the intent to perpetrate an act which probably would result in manslaughter. This element might be met by showing that the killing of *Page 158 the human being was the result of the procurement or culpable negligence of the person charged where the killing was not justifiable nor excusable homicide nor murder. It might be met by showing the violation of the provisions of Section 5044 R. G. S., 716 C. G. L., or by showing the violation of Sections 5045 R. G. S., 7147 C. G. L., or 5046 R. G. S., 7147 C. G. L.; 5047 R. G. S. 7149 C. G. L., while in neither of these sections defining manslaughter is the intent to kill an element.
In Lassiter v. State, 98 Fla. 370, 123 So. 735, we said:
"Assault with intent to commit manslaughter is an unlawful assault committed in such manner and with such means as would have resulted in commission of crime of manslaughter, if person assaulted had then and there died from the effects of the assault."
I think this is the proper definition of assault with intent to commit manslaughter and it does not include the element of intent to kill.
Now, the record in this case shows that Fortner assaulted one Oswald with a deadly weapon, to-wit, a knife. It was a question for the jury to determine whether or not the assault with the knife under the circumstances was justifiable or excusable. If the assault had resulted in the death of Oswald and Fortner had been indicted and tried for manslaughter the jury would have been required to determine the same question: That is, whether or not the assault with the deadly weapon was justifiable or excusable to that extent and no greater extent than if the assault had not resulted in death and the charge was only that of an assault with intent to commit manslaughter instead of the offense of manslaughter.
I think that the evidence was sufficient to warrant the jury in determining that the use of the deadly weapon was *Page 159 neither justifiable nor excusable. Therefore, I think the judgment should be affirmed.