482 So. 2d 91 | La. Ct. App. | 1986
Defendant was charged with illegal use of weapons in violation of LSA-R.S. 14:94. The statute defines the crime as “the intentional or criminally negligent discharging of a firearm.” The bill of information charged that defendant “did criminally negligently discharge a pistol.” The jury returned a verdict of guilty of attempted illegal use of weapons consistent with the trial court’s instruction that attempt was included within the charged offense. Defendant assigns error with respect to the question of whether an attempt is included within the offense of illegal use of weapons where the state has charged defendant not with the intentional use but with the criminally negligent use of a weapon.
R.S. 14:27 defines attempt as follows:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; .... (Emphasis supplied)
The offense of illegal use of weapons is not included in C.Cr.P. Art. 814’s list of offenses and responsive verdicts applicable thereto. Art. 815 provides that in all other cases a responsive verdict would be a lesser and included grade of the offense charged. A lesser and included offense is one in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Dufore, 424 So.2d 256 (La.1982)
With respect to the charge against defendant of the criminally negligent discharge of a firearm the statutory definition of criminal negligence in R.S. 14:12 is pertinent:
Criminal negligence exists 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.
Thus, the element of intent is absent from criminal negligence as it is from the offense charged against defendant. Since attempt contains the element of intent, attempt is not a lesser and included offense within the offense charged.
Accordingly, the conviction and sentence are reversed and set aside.
REVERSED AND RENDERED.