DIXON, Chief Justice.
On August 11, 1979 at about 5:00 p. m. Russell Guillot was sitting in his car in the Tunica Tavern parking lot in Marksville, Louisiana. The defendant drove up and parked beside Guillot, pulled out a pistol, waved it at Guillot and then shot in his direction. The bullet lodged in the right front door of the car. Guillot backed the car out of the lot onto the highway and headed west. The defendant followed in his car. Guillot then made a U-turn and headed east toward his father's house. As he passed the defendant's car, the defendant shot again, this time hitting the left front door of the car. The defendant was charged by grand jury indictment with attempted second degree murder. (R.S. 14:30.1 and 14:27). A jury of twelve found him guilty of aggravated battery. (R.S. 14:34). After a hearing on the state's motion to have him sentenced under the habitual offender law (R.S. 15:529.1), the defendant was adjudged a third offender and was sentenced to six years imprisonment at hard labor.
The defendant now appeals his conviction and sentence on the basis of six assignments of error. We reverse because there is no evidence of an essential element of aggravated battery, and discuss only Assignment of Error No. 4.
The defendant contends that the jury erred in returning a verdict of guilty of aggravated battery, as there was no evidence to support such a verdict. He argues that the conviction should be reversed because an essential element of the offense was never proved at trial. The state argues that the verdict should stand because aggravated battery is a legislatively designated responsive verdict to a charge of attempted second degree murder. (C.Cr.P. 814). The state notes that in previous opinions we have refused to examine evidence adduced at trial to determine whether a responsive verdict provided by C.Cr.P. 814 is warranted. It is true that we have, in the past, affirmed convictions of lesser offenses designated as responsive by the legislature where there was evidence to prove the greater offense without reviewing the evidence in the belief that:
See also State v. Qualls, 353 So.2d 978 (La. 1977); State v. West, 319 So.2d 901 (La. 1975); State v. Peterson, 290 So.2d 307 (La. 1974).
We have also disapproved a legislatively provided responsive verdict if it offends a constitutional principle. State v. Booker, 385 So.2d 1186 (La.1980); State v. Peterson,
In Roberts, as here, the defendant was indicted for attempting to murder by shooting with a pistol. He was found guilty of aggravated battery and appealed, arguing that the verdict was not responsive to the charge. The court noted that the elements of the crime of attempted murder were specific intent to kill and an overt act in furtherance of that object. (R.S. 14:27 and 14:30). Battery was defined as "the intentional use of force or violence upon the person of another." (R.S. 14:33); aggravated battery was battery committed with a dangerous weapon. (R.S. 14:34). The court pointed out that if A intentionally shot at B but missed him, he would be amenable to a charge of attempted murder, but not aggravated battery, as he did not apply force or violence to the person of B with a dangerous weapon. Finding it "... plain from the definitions of attempted murder and aggravated battery that the elements of the lesser offense are not necessarily included in the greater offense, ..." (State v. Roberts, supra at 213 La. 563, 35 So.2d 217), the court held that the conviction for aggravated battery was not responsive to the charge of attempted murder, reversed the conviction, and dismissed the proceedings against the defendant. The court explicitly rejected the state's argument that it should be guided by the allegations in the indictment rather than the definitions of the offenses involved in determining whether a greater offense charged contained all the elements of a lesser offense. It said:
In State v. Peterson, supra, we distinguished Roberts and cases following it on the ground that they did not involve responsive verdicts provided by the legislature.
On rehearing, we commented:
In Booker we declined to overturn State v. Cooley, supra, and the cases which held that if there is some evidence in the record to support a conviction for a greater offense, the evidence will also support a conviction of the lesser offense which has been made responsive by the legislature. However, we added the proviso "so long as the elements of the lesser offense are included in the greater offense." State v. Booker, supra, at 1190. We must now hold that in some cases evidence offered to support a conviction for a greater offense will not necessarily and automatically support a conviction for a lesser offense which has been made responsive by legislative action. Where the definition of the greater crime does not necessarily include all the elements of the lesser, we will have to determine whether there is any evidence to support the conviction for the lesser offense even though it is a legislatively designated responsive verdict. Where there is a total lack of evidence to prove the presence of an element contained in the lesser crime, but not in the greater, the conviction must be reversed.
This case is one in which an essential element of the lesser crime found is not an essential element of the greater crime charged; consequently, the evidence adduced to support the greater offense does not automatically prove the lesser. An essential element of battery—defined as the intentional use of force or violence upon the person of another—is physical contact whether injurious or merely offensive.
Having determined that the conviction must be reversed, we must now decide whether the defendant must be discharged or whether he may be retried for a lesser offense, such as aggravated assault, in light of the double jeopardy clause of the Fifth Amendment. In a recent case the United States Supreme Court dealt at length with the double jeopardy issue. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Noting that its own holdings on the subject could hardly be characterized as models of consistency and clarity, the court attributed much of the conceptual confusion it found in the area to the failure to distinguish reversals based on evidentiary insufficiency from reversals based on trial error. Overruling several previous decisions, the court held that the double jeopardy clause precludes a second trial where a conviction is reversed by an appellate court solely because the evidence introduced at trial is insufficient to sustain the verdict, but does not preclude retrying a defendant when a conviction is set aside because of an error in the trial proceedings. The rationale for this distinction is that:
In the case at bar, we reversed the conviction because there was no evidence of an essential element of the crime found by the jury. However, the faulty verdict was largely the product of a trial error in that the judge read the jury the responsive verdicts listed in C.Cr.P. 814 without instructing them that aggravated battery would not be an appropriate responsive verdict where there was no evidence to support that charge. The judge's action is understandable when considered in the light of some of our previous decisions on responsive verdicts. Nevertheless, C.Cr.P. 803 states, in pertinent part:
Because trial error led to the defendant's conviction for a crime not supported by the evidence, we believe that retrial for a lesser offense is not barred by the double jeopardy clause. Accordingly, we reverse the conviction and remand for proceedings consistent with this opinion.
MARCUS, J., dissents and assigns reasons.
DENNIS, J., concurs and will assign additional reasons.
WATSON, J., dissents for reasons assigned by MARCUS, J.
MARCUS, Justice (dissenting).
I would not reverse the conviction and sentence for aggravated battery because it is designated by La.Code Crim.P. art. 814 as a responsive verdict to the charged crime of attempted second degree murder. Accordingly, I respectfully dissent.
DENNIS, Justice, assigning additional concurring reasons.
I join in the majority opinion but feel that a word of caution should be added. Regardless of whether one focuses on the lack of evidence of an essential element of the lesser offense of which defendant was convicted, or on the failure of the indictment to include due process notice of that lesser charge, it was a violation of due process to convict him of that lesser offense. Although both of these deficiencies are present in this case, it would violate due process equally to convict a defendant of a charge of which he was not given adequate notice and against which he had no chance to defend, even if there was evidence to support the charge. State v. Booker, 385 So.2d 1186 (La.1980); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948).