213 La. 158

#### STATE v. ENGLERTH.

No. 38663.

Supreme Court of Louisiana.

Dec. 15, 1947.

Rehearing Denied Feb. 16, 1948.

Dissenting Opinion Feb. 17, 1948.

Warren Hunt, of Rayville, D. W. Gibson, of Harrisburg, and Jno. C. Morris, Jr., of Rayville, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Jesse C. McGee, Dist. Atty., of Harrisburg, and S. R. Thomas, of Natchitoches, for plaintiff-ap-pellee.

O’NIELL, Chief Justice.

The question in this case is whether a person on trial for the crime of aggravated battery, as defined in article 34 of the Criminal Code, is entitled to have the judge charge the jury that a verdict of guilty of negligent injuring, as defined in article 39, would be a responsive verdict.

The defendant, appellant, was prosecuted under an indictment charging that he did commit an aggravated battery upon the party named in the indictment by shooting and wounding him with a dangerous weapon — a pistol. On the trial of the case the attorney for the defendant made a timely request of the judge to instruct the jury on the law of negligent injuring, as defined in article 39 of the Criminal Code, and especially to charge the jury that a verdict of guilty of negligent injuring would be a responsive verdict. The judge refused to give the instruction, and the. attorney for the defendant reserved a bill of exception. The defendant .was found guilty as charged and was sentenced to a term of three years imprisonment in the penitentiary.

Article S of the Criminal Code provides that an offender who commits an offense which includes all of the elements of other lesser offenses may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses, and that, in such a case, where the offender is prosecuted for the greater offense, he may be convicted of any one of the lesser and included offenses. Article 406 of the Code of Criminal Procedure also provides that, when the crime charged includes another of lesser grade, a Verdict of guilty of the lesser crime 'is responsive to the indictment, and that it is of no moment that the greater offense is a felony and the lesser a misdemeanor.

Accordingly, article 386 of the Code of Criminal Procedure provides that, whenever the indictment sets out an offense including other offenses of less magnitude or gradé, the judge shall charge the jury the law<- applicable to all offenses of which the accused could be found guilty under the indictment, and that in all trials for murder fhe jury shall be instructed that *410they may find the accused guilty of manslaughter or negligent homicide.

The question in this case therefore is whether the crime of negligent injuring, as defined in article 39 of the Criminal Code, is included as an offense of less magnitude in an indictment for the crime of aggravated battery, as defined in article 34.

Article 33 of the Criminal Code defines battery as the intentional use of force or violence upon the person of another. Article 34 defines aggravated battery as a battery committed with a dangerous weapon, and prescribes the penalty as imprisonment, with or without hard labor, for not more than ten years. Analyzing the two articles, therefore, aggravated battery consists of the intentional use of force or violence, with a dangerous weapon, upon the person of another.

Article 39 of the Criminal Code defines negligent injuring as the inflicting of any injury upon the person of another by criminal negligence, and prescribes the penalty as a fine not exceeding one thousand dollars, or imprisonment for a term not exceeding one year, or both.

Article 12 of the Criminal Code defines criminal negligence as existing when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

The issue in this case therefore is narrowed down to the question whether the crime with which the defendant was charged, that is, aggravated battery, includes all of the elements of the lesser offense, which is defined as negligent injuring; and that question depends upon whether a personal injury inflicted upon another by criminal negligence is merely a lower grade of the offense of intentionally using force or violence upon the person of another. The distinction between the two offenses is that in the case of battery, either simple or aggravated battery, the personal injury is inflicted with criminal intent, whereas, in the case of negligent injuring, the personal injury is inflicted by criminal negligence.

Our conclusion is that a personal injury inflicted by criminal negligence is merely a lower grade or degree of the same offense' that is committed when a personal injury is inflicted intentionally. This conclusion is borne out by the definition of criminal negligence as given in article 12 of the Criminal Code. And the conclusion is strengthened by the fact that the crime of battery, either simple or aggravated, and the crime of negligent injuring are dealt with in the same chapter of the Criminal Code, that is, Chapter II, entitled “Assault and Battery (with Related Offenses)”, which chapter is in Title II, dealing with “Offenses Against the Person.” And our ruling in this case is in harmony with the example given in article 386 of the Code of Criminal Procedure, that in all trials for murder the jury shall be instructed that they may find the accused guilty of manslaughter or negligent homicide. An analogy appears in State v. Stanford, 204 La. 439, 15 So.2d 817, where it was held that in a prosecution for manslaughter a verdict of guilty of negligent homicide was a responsive verdict.

The record in this case contains a motion for a new trial, founded upon complaints of misconduct of the jury, and contains considerable evidence taken on the trial of the motion. It appears that a bill of exception was taken to the overruling of the motion but we do not find such a formal bill of exceptions in the record. That is a matter of no importance, however, since we have concluded that the verdict and sentence must be set aside and the case remanded for a new trial.

The verdict and sentence are annulled and the case is ordered remanded to the district court for a new trial.

HAMITER and HAWTHORNE, JJ., dissent.

BOND, J., absent.

HAWTHORNE, Justice

(dissenting).

I am of the opinion that the trial judge was correct in refusing to charge that a *411verdict of guilty of negligent injuring was responsive to a charge of aggravated battery.

The law of this state in regard to responsive verdicts, generally, is set out in Articles 405 and 406 of the Code of Criminal Procedure, thus:

> “405. The verdict must be responsive to the indictment, that is to say, no one can be found guilty of an offense not charged in the indictment or not *necessarily included*in the offense charged; i}i ‡ *»*

> “406. When the crime charged *includes*another of lesser grade, a verdict of guilty of the lesser crime is responsive to the indictment, and it is of no moment that the greater offense is a felony and the lessor a misdemeanor.” (Italics mine.)

When these articles are applied to the instant case, it is clear in my opinion that the offense of negligent injuring must *necessarily be included*in the offense of aggravated battery for a verdict of guilty of negligent injuring to be responsive to a charge of aggravated battery. An excellent discussion of the proper method for determining whether one offense is included in another is found in State v. Woolman, 84 Utah 23, 33 P.2d 640, 645, 93 A.L.R. 723, wherein it is said:

> “ * * * The only way this matter may be determined is by discovering all of the elements required by the respective sections [of two statutes denouncing the crimes there under consideration], comparing them and by a process of inclusion and exclusion, determine those common and those not common, and, if the greater offense includes all the legal and factual elements, it may safely be said that the greater includes the lesser; if, however, the lesser offense requires the inclusion of some necessary element or elements in order to cover the completed offense, not so included in the greater offense, then it may be safely said that the lesser is not necessarily included in the greater * * *.

> “The statute [similar to our codal provisions hereinabove quoted] allows conviction for any lesser offense *necessarily included*in the offense charged in the indictment or information, but does not allow conviction of any lesser offense stated in the indictment unless it is *necessarily included*in the greater offense. The lesser offense must be a necessary element of the greater offense and must of necessity be embraced within the legal definition of the greater offense and be a part thereof.”

Applying the provisions of our Criminal Code and the principles enunciated by the Woolman case to the instant case, I find no difficulty in determining that the greater offense (aggravated battery) does not include all the legal and factual elements of the lesser (negligent injuring), for the lesser offense requires the inclusion of some necessary element not included in the greater offense, in order to cover the completed offense; therefore the lesser offense is not included in the greater. For instance, one of the necessary elements of negligent injuring is *criminal negligence.*This element is not included in aggravated battery. Actually, criminal negligence *cannot be*an element of aggravated battery for intent is the requisite element of that crime. Since the element of criminal negligence is not *necessarily included*in the offense charged, under the plain terms of Article 405 of the Code of Criminal Procedure a verdict of guilty of negligent injuring cannot be responsive to a charge of aggravated battery.

For an analogy to the instant case the majority opinion cites State v. Stanford, 204 La. 439, 15 So.2d 817, where it was held that in a prosecution for manslaughter a verdict of guilty of negligent homicide was a responsive verdict. As I interpret that decision, this court based its conclusion on the fact that the Legislature had treated the crimes of murder, manslaughter, and negligent homicide as kindred and generic, and it was of the opinion, therefore, that the Legislature by its action had made the crime of negligent homicide responsive to a charge of manslaughter. See Act 147 of 1942, Section 1, amending Article 386 of the Code of Criminal Procedure. That case is not authority for the decision here, for there is no legislative intent to treat the crimes in the instant case as kindred and generic, and this court should *412decide the issue, therefore, by applying the general principles, enunciated herein, for determining *included offenses.*

I respectfully dissent.