About dusk on the evening of November 2, 1927, J. D. Whitman was driving an automobile on the public highway and ran into a wagon in which Judie and John Wilkins were traveling, going in the same direction in which the automobile was traveling. *Page 990
The result of the accident was the death of the two occupants of the wagon. Whitman was indicted for manslaughter for the killing of Judie Wilkins, one of the occupants of the wagon. The accident occurred in Madison County within the corporate limits of the town of Lee. Whitman was convicted and sentenced to a term of two years in State prison. It was sought to reverse the judgment on writ of error.
The defendant moved to quash the indictment upon the grounds that it fails to sufficiently identify the offense sought to be charged so as to protect the defendant after trial from "danger of a future prosecution for the same offense"; that the indictment names J. D. Whitman as the defendant, whereas the defendant's name is Julian D. Witman, and for "other grounds apparent." The motion was overruled.
In the brief all these grounds seem to be abandoned but it is argued that because the indictment did not describe Judie Wilkins as a human being it is defective. The grounds of the motion are without merit as well as the point made in the brief.
The indictment charges the defendant with killing Judie Wilkins by careless and reckless driving of an automobile and being at the time under the influence of intoxicating liquors. The facts are alleged with clearness and certainty. Culpable negligence is charged. Driving the automobile at a high rate of speed on the public highway in a negligent, careless and reckless manner while under the influence of intoxicating liquor; the driving of the automobile to and against the body of Judie, throwing her to the ground with violence, causing injuries from which she died about a and ten days later.
The indictment was frame under a provision of Chapter 9269, Laws of Florida 1923, being an Act to amend Sec. *Page 991 5563, Rev. Gen. Stats., relating to intoxicated persons operating automobiles. The provision applicable to this case is as follows: "And if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter and on conviction be punished as provided by existing law relating to manslaughter."
An indictment will not be quashed for indefiniteness unless so vague and indefinite as to mislead or embarrass the accused in his defense, or subject him to the danger of a new prosecution for the same offense. See Wolf v. State, 72 Fla. 572, 73 So. R. 740; Ellis v. State, 74 Fla. 215, 76 So. R. 698; Steffanos v. State, 80 Fla. 309, 86 So. R. 204.
The attack made in the second ground of the motion that the defendant's name was Julian D. Witman and not J. D. Whitman should have been made by plea in abatement. A motion to quash was not the proper procedure. The function of such a motion is to present an imperfection apparent upon the face of the indictment attacked, not to introduce some extraneous fact which has to be established by evidence before it can be effective to accomplish the destruction of the pleading attacked. See Broward v. State, 9 Fla. 422; Barber v. State,52 Fla. 5, 42 So. R. 86; Mills v. State, 58 Fla. 74, 51 So. R. 278; Disney v. State, 72 Fla. 492; 73 So. R. 598.
Upon the subject of pleas in abatement for misnomer, see the discussion in Waldron v. State, 41 Fla. 265, 26 So. R. 701.
The last ground of the motion is too general to be considered. When one desires to attack an indictment by a motion to quash because of some substantial or formal defect in it appearing upon its face the motion should specifically point out the alleged defect. To state merely that the indictment is bad for apparent reasons is to add nothing to the bare objection that it is bad. *Page 992
The point made in the brief that the indictment should have alleged that Judie Wilkins was a "human being" is without merit. The charge would have been precisely stated by alleging that she was a human being, but that failure to impart so high degree of accuracy to the language of the charge could be waived. It was waived in this case, and it cannot be said that the failure to allege that Judie was a human being misled the defendant to his injury and caused a miscarriage of justice. It is not necessary to allege that the deceased was a human being. 10 Enc. Pleading and Practice, 146.
There was a plea in abatement to the indictment presenting the misnomer of the defendant. The court sustained a demurrer to it. There was no error in the ruling. The names "Witman" and "Whitman" are so near alike in sound as to be within the rule of idem sonans. See Myers v. State, 84 Fla. 508, 94 So. R. 507.
A motion for a continuance was made and overruled. That constitutes the basis for the third assignment of error. The motion was not improperly overruled. It showed no service of the subpoena upon the absent witness, or that she was the only person by whom the same facts to which it was alleged she would testify could be shown, that her testimony would not be merely cumulative, nor does the affidavit set forth how the defendant knew that the absent witness would testify as set forth in the affidavit. There are other defects in the affidavit which, as this Court has said, should be scanned with more care than in a civil case. See Bryant v. State, 34 Fla. 291, 16 So. R. 177; Moore v. State, 59 Fla. 23, 52 So. R. 971; Easterlin v. State,43 Fla. 565, 31 So. R. 350; Reynolds v. Smith, 49 Fla. 217, 38 So. R. 903; Adams v. State, 56 Fla. 1, 48 So. R. 219; Fla. East Coast R. Co. v. Smith, 61 Fla. 218, 55 So. R. 871; Stinson v. State, 76 Fla. 421, 80 So. R. 506. *Page 993
The fourth assignment of error attacks the sufficiency of the evidence to sustain the verdict. The assignment is not well taken. The evidence was sufficient to justify the conclusion reached by the jury. A discussion of it would avail nothing. There was evidence of intoxication, reckless driving and there was a confession.
The judgment is affirmed.
TERRELL, C. J., AND WHITFIELD AND BUFORD, J. J., concur.
BROWN, J., dissents in part.