author: BLANCHE, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. David WEBB and Earl Davis, Jr.
    No. 82-KA-0392.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 21, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Richard Thomas, Asst. Dist. Atty., for plaintiff-ap-pellee.
    Clyde D. Merritt, Dwight Doskey, Orleans Indigent Defender Program, Roy V. Ladner, Jacob Kansas, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

Defendants David Webb and Earl Davis, Jr. were convicted of first degree murder for the killing of Ronald Eledge, a violation of LSA-R.S. 14:30. The following day, the jury of twelve recommended that the defendants be sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The defendants were then sentenced in accordance with the jury’s recommendation. Defendant Webb appeals his conviction and sentence, urging one assignment of error. Defendant Davis also appeals his conviction and sentence, urging twenty-one of the thirty-four assignments of error he filed below. Because we find Webb’s sole assignment of error and Davis’ assignment of error No. 2 sufficient to warrant reversal of these convictions, we do not discuss all twenty-one assignments urged.

FACTS

On March 18, 1979, John Furtado, Victor Lee, and Ronald Eledge, three transsexuals, were in their French Quarter apartment in New Orleans, Louisiana. As Furtado left the apartment and started out of the complex, he was approached by the two defendants. Webb pointed a gun at Furtado and ordered him to surrender his key. Apparently, Furtado and Webb had met at an earlier date, but Furtado testified that he had never seen Davis before that moment. At gunpoint, Furtado re-entered the apartment. Webb demanded money and drugs from the three, and Lee and Furtado were ordered to disrobe. Webb then tied the hands and feet of the three and gave Davis a knife, instructing him to watch the victims while he searched the apartment for money. There was conflicting testimony from Lee, one of the victims, that Davis had locked the door to the apartment and tied up the three. Lee also claimed that Davis had threatened him with the knife.

Lee attempted to persuade Webb to allow him to call someone to obtain money, but Webb told him to shut up and stabbed him with the knife. Webb continued searching the apartment and ingested some drugs which he found there. Angered that the drugs did not make him high, Webb began strangling Eledge. When Eledge tried to speak, Webb stabbed him repeatedly in the back. He then rose and went to the sink to wash the blood off of his knife. When he returned, Webb noticed that Eledge was still alive. He turned Eledge over onto his back and said, “I’m getting paid for this one,” as he plunged the knife into Eledge’s neck and chest. When Eledge still refused to expire, Webb told him, “You’re a hard one to die.” Webb then slit Eledge’s throat and stomped on his face with the heel of his shoe. In the meantime, Davis gathered items into a suitcase in preparation for his exit with Webb.

Webb interrogated Furtado concerning names and addresses where he could obtain drugs and stabbed him in the back when he could get no response. Furtado then volunteered some names and addresses. As the defendants prepared to leave, Webb struck Lee and Furtado repeatedly on the head with a heavy champagne bottle, fracturing Furtado’s skull and rendering him unconscious. Lee feigned death. After the departure of Webb and Davis, Lee managed to escape through an apartment window and summon help. Furtado and Lee were hospitalized and eventually recovered. El-edge was declared by the medical examiner to have died from multiple stab wounds to the chest and neck.

Approximately four days later, Webb was arrested while hitchhiking near Poydras, Louisiana on suspicion of another murder. Webb confessed to the Eledge killing and showed police where he buried the murder weapon. Davis was arrested a few days later. At trial, Davis’ defense was based on his alleged lack of specific intent. Davis claimed to have been afraid of Webb because he was only fifteen years old at the time and Webb was twenty-five, that he did not know what Webb planned to do in the apartment, and that Webb had threatened to harm him and his family if he did not accompany him. Davis also asserted that the inculpatory statement given to the police by Webb exonerated him because in it Webb had expressly told the police that Davis had nothing to do with the killings. Webb’s inculpatory statement was not introduced into evidence by the state at trial.

On September 18, 1979, the day of the trial, Webb moved to sever the trials. He was joined in the motion by Davis. In his written motion, Webb urged that the contents of Davis’ opening statement would be severely prejudicial to his defense, and that Davis would attempt to bring out his confession, further prejudicing his cáse. This motion was denied sometime before the trial began. The record does not reflect what evidence was adduced by Webb to establish his allegations of prejudice, nor does it reflect exactly when the motion was denied.

In his opening statement, Davis asserted that he had participated in the crime because he was terrified of Webb, that he knew of other crimes committed by him, and that Webb had confessed to the Eledge murder. Webb again moved for a severance and a mistrial because of the prejudicial nature of the statement. At this point, Davis also re-urged his motion for a severance. All motions were denied. After Davis unsuccessfully attempted to cross-examine a police detective as to the content of Webb’s confession, the trial judge offered Davis’ counsel a severance, but that offer was rejected with a remark by counsel that he was ready for trial. At that point, Webb again moved for a severance, but the motion was denied.

ASSIGNMENTS OF ERROR NOS. 5, 33 (Webb’s assignment No. 1)

By these assignments of error Webb and Davis contend that the trial court erred in failing to grant their motions for severance, and Webb also contends that the trial court erred in failing to grant their motions for severance, and Webb also contends that the trial court erred in failing to grant his motions for mistrial during the state’s case in chief. Because we find Webb’s conviction reversible on the issue of severance, we do not address his assignment insofar as it concerns the trial court’s failure to grant a mistrial.

On May 16, 1979, some four months before trial, defendant Davis filed a motion for severance, alleging that the two defendants had antagonistic defenses. In the motion, Davis noted that the state was in possession of a confession by Webb, but that he would not have the right to cross-examine Webb as to the content of the statement. After a hearing on May 21, 1979, the motion to sever was denied. At the hearing, Davis testified that Webb had forced him to participate in the crime by threatening him and his family. In our opinion, a severance should have been granted on this motion, but the right to appeal its denial inures only to Webb. We are of the opinion that Davis waived his right to appeal the denial of this motion by refusing the severance offered to him later in the trial.

An objection made when more than one defendant is on trial, even a written pre-trial motion for a severance, is presumed to have been made on behalf of all defendants unless the contrary appears true. La.C.Cr.P. art. 842; State v. Lavigne, 412 So.2d 993 (La.1982); State v. Bergeron, 371 So.2d 1309 (La.1979). Although Webb did not join in this motion to sever, the presumption relieves him of the necessity of making an affirmative showing that it was made on his behalf. State v. Henderson, 296 So.2d 805 (La.1974). Therefore, because there has been no showing by the State to the contrary, Davis’ pre-trial motion shall be presumed to have been made on behalf of both Webb and Davis.

Jointly indicted defendants are to be tried jointly unless the court is satisfied that justice requires a severance. La.C.Cr.P. art. 704; State v. Tennant, 352 So.2d 629 (La.1977), cert. den., 435 U.S. 945, 98 S.Ct. 1529, 55 L.Ed.2d 543 (1977). The accused is not entitled to a severance as a matter of right, but the decision is one resting in the sound discretion of the trial judge. A denial of a motion to sever will not be overturned on appeal absent a clear abuse of discretion. State v. Gaskin, 412 So.2d 1007 (La.1982); State v. Manuel, 408 So.2d 1235 (La.1982); State v. McGraw, 366 So.2d 1278 (La.1978). It is an abuse of discretion not to grant a motion for severance when the trial judge has been made aware that a defendant intends to lay blame for the offense at the feet of a co-defendant. State v. Williams, 416 So.2d 914 (La.1982); State v. Lavigne, supra. Note, however, that antagonistic defenses do not represent the only instances where denial of a motion to sever will constitute an abuse of discretion. Where the ends of justice will best be served by a severance, it should be granted. See La.C.Cr.P. art. 704, comments (c), (d); cf. State v. Barkley, 412 So.2d 1380 (La.1982); Wright, Federal Practice & Procedure, Criminal, § 225 (1982); West’s Federal Practice Manual, § 6754 (1970).

In the present case, the trial judge, at the hearing on Davis’ motion to sever, was presented with evidence that Davis was going to lay blame for the offense at the feet of Webb. On direct examination, the following colloquy occurred:

* * * * * *
“Q: [D]id Mr. David Webb force you to participate in the series of events against your will?
A: Yes, sir. In a way he did.
Q: How did he force you to participate in these incidents?
A: Well, you see — you know, he pulled the gun on the guy, you know .... I did what he told me to.
Q: Did he threaten you? Did he tell you he was going to kill you or members of your family if you didn’t help?
A: He said if I said anything, he would.
Q: Well, is it your testimony that you participated ... in this homicide and robbery against your will?
A: Yeah.
Q: That Mr. David Webb forced you to participate in these incidents... ?
A: Yeah. He threatened me.
Q: Did he also threaten members of your family?
A: Yes, sir.
Q: And had David Webb not forced you or intimidated you, ... you would not have participated . .. ?
A: No. I never did nothing in my life wrong.”

In his reasons for denying the motion to sever, the trial judge stated that he found no antagonistic defenses and intimidated that his denial was based in part on the fact that Webb’s statement was exculpatory with regard to Davis. In our opinion, the trial judge erred in finding that the evidence failed to disclose antagonistic defenses and that the fact of the exculpatory nature of Webb’s statement somehow justified denial of the motion.

It is obvious from the testimony of Davis that his defense was to place the blame for the crime on Webb. Davis testified that he was afraid of Webb and that Webb had threatened him and his family. Further, in the written motion for severance, Davis specifically noted that Webb had given an inculpatory statement to the police which exculpated him and that he would not be able to cross-examine Webb as to its content if Webb were his co-defendant on trial before the same jury.

In State v. Barkley, supra, we held that a denial of a motion to sever may constitute an abuse of discretion where a defendant establishes that his co-defendant would present exculpatory evidence at a separate trial. In this case, there is no evidence which would indicate that Webb would be willing to voluntarily exculpate Davis at a separate trial. However, we are not willing to limit the scope of Barkley and a defendant’s right to obtain a severance to situations where the codefendant will take the stand to willingly exculpate the defendant. A criminal defendant has the right to compel the attendance of witnesses and present a defense. U.S. Const., amendments VI, XIV; La. Const. art. 1, sec. 16; State v. Sylvester, 400 So.2d 640 (La.1981); cf. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Davis, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). In keeping with his right to present a defense, Davis would have the right to compel the attendance of Webb and other witnesses to examine them as to the content of the exculpatory statement, a right which was limited by the denial of the motion to sever.

Therefore, we find, under the circumstances of this case, that the denial of Davis’ motion to sever on May 21, 1979 constituted an abuse of discretion on the part of the trial judge. It was readily apparent from the testimony adduced at the hearing that the thrust of Davis’ defense was to be to place blame for the incident at the feet of his co-defendant, Webb. This placed Webb in the position of having to defend against two accusers, the state and Davis. Where the motion is one made pre-trial, we need not consider whether the evidence was so overwhelming that Webb would have been convicted anyway had there been separate trials. It is incumbent on this court to examine the propriety of the trial court’s rulings irrespective of whether the conviction of Webb would have been certain at a separate trial. State v. Lavigne, supra, at 997; State v. Thibodeaux, 315 So.2d 769 (La.1975). Further, it should have been apparent from the proceedings that Davis’ defense would be curtailed by a joint trial to such a degree that denial of the motion would amount to a deprivation of his constitutional right to put on a defense. In such cases, justice requires a severance. La.C.Cr.P. art. 704; State v. Williams, supra; State v. Lavigne, supra.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defendant Davis urges that the trial court improperly restricted his cross-examination of a police detective regarding Webb’s confession. Ordinarily, such an assignment, when taken alone, might be considered harmless error. But given the totality of the circumstances presented in this trial, this assignment represents error of constitutionally significant proportions. Because we find Davis’ conviction reversible on the issue of improper denial of his right to cross-examination, we do not address this assignment insofar as it urges ineffective assistance of counsel.

During his cross-examination of Detective Vega, a state witness who was present during the statement given by Webb, Davis attempted to elicit the contents of the confession. The trial judge only allowed Davis to question Vega as to whether or not Webb had made a statement which exculpated Davis. Davis submits that the jury would have given considerable weight to the exculpation because it was in a declaration against Webb’s penal interest. Further, Davis asserts that the principal issue was whether or not he had specific intent to kill Ronald Eledge, and without the entire confession in evidence, it was impossible to establish that Webb was aware of Davis’ innocence at the time of the offense.

We agree. A criminal defendant has a right to put on a defense. U.S. Const. amendments VI, XIV; La. Const. art. 1, sec. 16; Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); State v. Sylvester, 400 So.2d 640 (La.1981). The substance of Webb’s statement indicates that the killing was a spur of the moment decision and bolsters Davis’ claim that he did not know what Webb planned to do in the apartment. As such, it represented evidence from which the jury could have inferred that Davis had no specific intent.

In the statement, Webb told the police that he had just been walking down the street when he saw Furtado. It was at that moment that he decided to rob them. When asked why he stabbed the three, Webb replied that he did not know, but later asserted that he killed Ronald Eledge because he used to “stare” at him. Webb stated that it first occurred to him to “do something” in the apartment when he realized that no one had seen them enter. He said he disliked Eledge and it just crossed his mind to kill him.

In Chambers v. Mississippi, supra, the defendant was convicted by a Mississippi court for the murder of a policeman and was sentenced to life imprisonment. Another man, McDonald, had confessed to the crime but later repudiated the confession. At trial, Chambers’ defense was two-fold. First, he wanted to show that he had not shot the policeman, and second, that another man, McDonald, had confessed to the shooting. However, because of strict application of the state rules of evidence, Chambers was only partially successful in bringing before the jury testimony to support his defense. Under the Mississippi “voucher rule,” Chambers was neither able to call McDonald to the stand to cross-examine him as to his confession nor was he able to present witnesses on his own behalf to testify as to the content of McDonald’s confession. This was held to be a denial of Chambers’ constitutional right to put on a defense. 410 U.S. at 294-303, 93 S.Ct. at 1045—49.

The predicament of Davis in this case is not wholly unlike the predicament of the defendant in Chambers. Davis was restricted in his efforts to put on a defense which would have shown that another man, Webb, had confessed to the crime. It is true that Davis was allowed to examine Vega on the statement, but only to the extent that it exculpated him. That restriction made it difficult for the jury to accord the statement its proper weight. We cannot begin to calculate the effect that full knowledge of Webb’s confession would have had on the jury.

Further, the restriction made impeachment of Detective Vega virtually impossible. Vega denied that the statement exculpated Davis. Our review of the record shows that this is simply not' true. The relevant excerpts from Webb’s confession read as follows:

* * * * * *
“[Q]: ... the person [who] was with you ... Do you know this person's name?
WEBB: Ah, the person didn’t do anything man ...
[Q]: He didn’t do anything as far as what?
WEBB: It’s not necessary ... He didn’t do anything ... OK?
* * * * * *
He didn’t know I was going to do it.
* * * * * *
He didn’t know ... I didn’t even know ... so why should you bother to implement [sic] him?
* * * * * *
[Q]: Can you tell me the name of the subject that was with you?
WEBB: [T]hat person is innocent ... because he’s never been in trouble ...
* * * * * *
[Q]: [H]e did not take part with you at any time in any crime?
WEBB: No. The kid never done anything ...”
******

It is apparent from the record that Webb repeatedly exculpated Davis. However, because the trial judge only allowed Davis to ask Vega whether Webb’s statement exculpated him, Davis could not impeach Vega’s testimony by reading to him relevant portions of the statement and asking him whether or not he remembered Webb making such exculpatory remarks. He was not allowed to test Vega’s recollection, probe into the details of Webb’s statement, and “sift his conscience so the jury might judge for itself” whether Vega’s testimony was worthy of belief. 410 U.S. at 295, 93 S.Ct. at 1045.

Therefore, we find Chambers v. Mississippi, supra, to be persuasive authority on this point and hold that the restrictions on Davis’ cross-examination of Detective Vega as to the content of Webb’s inculpatory statement amounted to a denial of Davis’ constitutional right to put on a defense. See also La. Const. art. 1, sec. 16; State v. Sylvester, supra.

DECREE

For the foregoing reasons, the convictions of David Webb and Earl Davis, Jr. are reversed, the sentences are vacated, and the case is remanded to the trial court for further proceedings in accordance with the law.

REVERSED AND REMANDED.

LEMMON, J., concurs.

WATSON and CALOGERO, JJ., dissent.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I do not consider that the defenses in this case were antagonistic. Defendants were not pointing the finger at each other as to who committed the murder; rather, only the degree of culpability was at issue. Under the circumstances, I do not consider that the ends of justice required a severance. Additionally, I do not find reversible error in the restrictions placed on Davis’ cross-examination of Detective Vega as to the content of Webb’s inculpatory statement. Accordingly, I respectfully dissent from the reversal of defendants’ convictions and sentences.

      . Just before voir dire began, counsel for Webb stated that he would like to “re-urge” his motion for severance. This indicates that the motion was argued and denied sometime before voir dire. As Webb argued his motion for severance following Davis’ opening statement, the trial judge noted that the same motion had been argued pre-trial.
      Even though the record is bare on this point, it is not difficult for us to speculate that the motion should have been granted, especially when the antagonism became so apparent later during trial. However, due to the incomplete record, we cannot make a proper determination on this matter since we do not know what evidence Webb introduced to support his right to a severance. All this aside, it is immaterial whether the denial was proper or improper since we find this issue dispositive on Davis’ pre-trial motion, as discussed, infra.

      . See State v. Jones, 347 So.2d 200 (La.1977). To hold otherwise would be to give Davis an unfair advantage. At the point he turned down the offered severance, Davis was obviously willing to take his chances that the jury would acquit him. We cannot countenance rewarding a defendant who turns down requested relief by affording him the opportunity to urge on appeal denial of that very relief earlier in the trial once the jury returns a verdict which is not favorable to him.

      . Of course, Webb could not be compelled to testify as to the inculpatory nature of the statement. U.S. Const., amendment V; Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); La. Const. art. 1, sec. 16; State v. Wilson, 394 So.2d 254 (La.1981); State v. Johnson, 345 So.2d 14 (La.1977). In Wilson, we noted that a witness may not simply refuse to take the stand. He may assert the privilege only with respect to certain questions. 394 So.2d at 258; see also Roberts v. U.S., supra.

      . We only so hold on this point as necessary for consideration of whether the trial judge abused his discretion in denying Davis’ pre-trial motion to sever since, under the law, the motion inures to Webb’s benefit. As we pointed out in n. 2, supra, Davis has waived his right to complain on the issue of severance.

      . Vega denied that the statement exculpated Davis. The following colloquy occurred between the bench and Davis’ counsel:

      BY THE COURT: “...lam [only] going to allow you to question Officer Vega with regard to whether or not they took a statement from Mr. Webb which exculpated Mr. Davis

      BY MR. DUMAINE: Is the court going to restrict my cross-examination?
      BY THE COURT: [Yes],
      BY MR. DUMAINE: Can I cross-examine the witness with respect to the statement in its entirety?
      BY THE COURT: No, sir. You may not.
      BY MR. DUMAINE: I’m going to object that, your honor.
      sf: its ¡fc * * *
      That’s the basis of my defense.

      ... I can prove from the mouth of the witness ... And I don’t think the state has the right ... to limit my defense.”


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    U.S. FIRE INSURANCE COMPANY v. Ellen Tooley SWANN, individually and as administratrix of the Succession of Francis E. Swann.
    No. 82-C-1143.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      Frank M. RePass, III, Deutsch, Kerrigan & Stiles, New Orleans, for relator.
    Edward A. Shamis, Jr., Shamis, Jolissaint & McCreary, Slidell, Leonard A. Young, Beinvenu, Foster, Ryan & O’Bannon, New Orleans, for respondent.
   CALOGERO, Justice.

We granted writs in this case to consider whether the Court of Appeal, 411 So.2d 1173 (1982), erred when it dismissed as untimely an appeal by Ellen Tooley Swann from a district court judgment against Ms. Swann and in favor of U.S. Fire Insurance Company. For the reasons which follow we determine that Swann did timely appeal the pertinent judgment in U.S. Fire’s favor, and that accordingly the Court of Appeal’s dismissal of the appeal was improper.

Ellen Tooley Swann and her now deceased husband, Francis E. Swann, owned a building out of which they operated a supply business. They sold the business (partially on credit) to James E. Daspit and his wife, Janet, and leased the building to the Daspits as well. The Daspits insured their business contents with U.S. Fire.

The building and its contents were destroyed by fire on September 20,1978; purportedly the fire was caused by defective wiring in Swann’s building.

Three separate lawsuits were thereafter filed. The Daspits sued Swann for damages arising out of the fire. Swann sued the Daspits for the unpaid portion of the business purchase price (claiming $36,277.15 remained unpaid on a $46,000.00 promissory note). U.S. Fire, alleging it had paid the Daspits $75,000.00, the limits on a fire policy for losses incurred because of the fire, and alleging that they were subrogated to a portion of the Daspits’ claim, sued Swann seeking recovery of the $75,000.00.

On August 1, 1979 on motion of Swann, the U.S. Fire suit (No. 56,126) was consolidated with the previously filed lawsuits Nos. 54,668 and 54,773. Trial on the merits of the three consolidated cases was held on November 5,1980. On July 9,1981, the trial judge issued reasons for judgment in the matter. Essentially the court found that fault lay with Swann because the fire was caused by defective wiring in the building. He found that the damages to which the Daspits were entitled amounted to $105,-000.00; that Swann was entitled to recover from the Daspits $25,548.18 (plus interest and attorney’s fees), the balance due on the Daspits’ promissory note; and that United States Fire, as subrogee, was entitled to a $75,000.00 portion of the $105,000.00 Daspit damages. Thus he recited that the court would award the Daspits “the sum of $105,-000.00 subject to the claim of United States Fire Insurance Company in the amount of $75,000.00 and the claim of Mrs. Swann.”

The trial judge concluded his reasons by reciting, “the court will sign a judgment in accordance with these reasons when one is presented to it.”

The reasons for judgment were issued under the following caption and number:

At this juncture the attorneys did not, as contemplated by the trial judge, present a single judgment in the three consolidated cases conforming with the trial judge’s reasons. Rather, respective counsel for U.S. Fire and the Daspits presented, and had the judge sign, separate judgments on July 15, 1981 and July 17, 1981.

The July 15, 1981 judgment, under No. 56,126 awarded U.S. Fire $75,000.00 plus costs and legal interest against Swann. The July 17, 1981 judgment, under No. 54,-668, awarded the Daspits against Swann $105,000.00, costs and legal interest, and in a separate paragraph it awarded Swann against the Daspits $25,545.18 plus legal interest and attorney’s fees. This latter judgment did not recite, as it should have, that $75,000.00 of the $105,000.00 Daspit award belonged to U.S. Fire.

As a result of the signing of the two judgments as presented, in the latter of which the $105,000.00 Daspit award was not made subject to credit for U.S. Fire’s $75,-000.00 entitlement, Swann was cast in judgment for $75,000.00 more than was intended by the trial judge in his written reasons.

Counsel for Swann opted not to have the judgments corrected by way of a motion for new trial, but instead, chose to seek his relief by way of appeal. Accordingly on August 7, 1981, counsel for Swann filed a petition and order for suspensive appeal. This petition was captioned and numbered exactly as the trial court’s reasons for judgment, that is, No. 54,668, “James E. Daspit and his wife, Janet S. Daspit, d/b/a Swann Supply v. Ellen Tooley Swann, widow of Francis E. Swann, Individually, and as Administratrix of the Succession of Francis E. Swann.” The petition was signed on August 25, 1981, and a bond of $130,000.00 was set.

On August 27, 1981, the deputy clerk of the district court sent out a notice of appeal to counsel for all parties to all three consolidated cases. The notice of appeal indicated that all three cases were being appealed, although in the body of the notice reference was made only to a judgment of July 17th. There was also sent by the Minute Clerk a letter to counsel for Swann, which in addition to indicating that all three cases had been appealed, advised him that costs would have to be paid within twenty days.

On August 28, 1981, Swann filed the sus-pensive appeal bond for $130,000.00. The bond was captioned and numbered in the same manner as was the petition for the appeal.

On September 28, 1981, the deputy clerk for the district court contacted counsel for Swann and questioned him concerning what was on appeal, informing him that someone from U.S. Fire was requesting a certificate of no appeal. Counsel allegedly informed the deputy clerk that all three of the consolidated cases had been appealed on August 7,1981,and that the same was reflected by the notice of appeal and the letter concerning payment of costs.

On September 29, 1981, the deputy clerk of the district court signed a “Certificate of No Appeal” for the case of U.S. Fire v. Swann, docket number 56,126. On this same day, the same deputy clerk sent a letter to counsel for all parties stating that the previously issued notice of appeal, indicating that all three cases had been appealed, was in error, and that “the only case that was appealed is number 54,668.”

On September 30, 1981, counsel for Swann received a letter from counsel for U.S. Fire demanding payment of the judgment and reciting that the July 15th judgment in U.S. Fire’s favor was final.

Thereafter, counsel for Swann on October 2, 1981, filed a motion in the district court contending that the previously signed judgments contained errors, in that they were not in conformity with the written reasons for judgment. He requested that an amended judgment be signed correcting those errors. Such an amended judgment was signed by the judge on that date. That amended judgment consolidated the two prior judgments into one. There was judgment U.S. Fire against Swann of $75,000.00 plus interests and costs; judgment Swann against Daspit of $25,545.18 plus interests and attorneys fees; and judgment Daspit against Swann of $105,000.00 plus legal interest, the latter, however, “subject to a credit of $75,000.00 reflecting the amount received by Mr. Daspit from U.S. Fire Insurance Company.”

Thereafter, on October 15, 1981, another petition and order for appeal was filed and signed, and another bond was filed, but for $135,000.00, the additional $5,000.00 apparently to take into account accumulating interest. The record in the three cases was lodged in the Court of Appeal on December 2.1981, and a lodging notice was mailed that day.

On December 3, 1981, counsel for U.S. Fire filed a motion to dismiss the appeal. It was argued, in the brief in support of the motion to dismiss the appeal, that the judgment in favor of U.S. Fire, signed on July 15.1981, had become final on September 29, 1981 when the delays had run for filing an appeal, without an appeal having been filed. It was further argued that the amended judgment obtained on October 2, 1981 did not change the judgment of July 15, 1981 and, therefore, did not start the appellate delays running anew. Consequently, it was argued that the appeal of the case of U.S. Fire v. Swann, District Court No. 56,126, should be dismissed as not timely perfected.

A “Show Cause Order” was sent to counsel for Swann requesting him to an-swer, by brief, the motion to dismiss. Finally, on March 2, 1982, judgment was rendered by the Court of Appeal dismissing the appeal in that case (No. 56,126). The court •correctly concluded that the appeal of one consolidated case with a separate judgment does not automatically effect an appeal of all other cases consolidated therewith. However, the court neglected to consider whether Swann’s original petition and order of appeal was in fact for all three cases and not just for one of the consolidated cases. We granted writs to consider that question.

Counsel for Swann contends that the appeal of the U.S. Fire case was timely perfected by the petition and order for appeal filed on August 7, 1981 and signed on August 25, 1981. In support of this contention, he argues that he used the one caption and number as a short reference to all three cases, just as did the trial judge in his written reasons for judgment. However, it was his intention to appeal all three cases. That intention was sufficiently evident to the clerk, for the clerk’s notice recited that all three cases had been appealed, and thus the same was evident to U.S. Fire upon receipt of the clerk’s notice, he contends.

Counsel for U.S. Fire attempts to refute Swann’s contention by directing our attention to the fact that the petition and order for appeal only referred to a judgment of July 16, 1981, and the notice of appeal, although naming all three cases by number, only referred to the judgment of July 17, 1981. Likewise, counsel for U.S. Fire points out that the bond did not make reference to the fact that $75,000.00 was owed to U.S. Fire, although counsel concedes that the bond did specify that $105,000.00 was owed to the Daspits and that the $130,000.00 was “for the benefit of any appellee, for any liability that may accrue in favor of any appellee on account of this appeal.”

The cases upon which United States Fire relies, Darouse v. Mamon, 201 So.2d 362 (La.App. 1st Cir.1967), Reed v. Pittman, 257 La. 389, 242 So.2d 554 (1970) and Prince v. Paretti Pontiac, 262 So.2d 826 (La.App. 4th Cir.1972) are distinguishable because in none of them was there under consideration the same issue as presented here, namely, whether an appeal was in fact taken in each of the three cases consolidated for trial in the district court. In the cited cases it was conceded that an appeal had not been taken in one or more of the consolidated cases, but argued that an appeal should nevertheless be permitted because of the timely appeal of one of the other cases.

We will now consider whether Swann’s was an appeal of the adverse judgments in all three cases. There are certain principles which guide us in this determination.

First of all there is the philosophy underlying the Code of Civil Procedure, as stated by Henry G. McMahon, coordinator of the Code of Civil Procedure in the introduction to the Code:

The new code embodies procedural rules designed to permit the trial of a case to serve as a search for the truth, and to have its decision based on the substantive law applicable, rather than upon technical rules of procedure.

This procedural philosophy is embodied in La.C.C.P. art. 5051, which provides:

The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.

In recognition of the fact that procedural rules are merely to implement the substantive law, as well as the fact that appeals are constitutionally guaranteed (La. Const. art. V, § 5 and § 10), this Court has consistently held that appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. An appeal is not to be dismissed for a mere technicality. Davidge v. Magliola, 346 So.2d 177 (La.1977); Howard v. Hardware Mutual Company, 286 So.2d 334 (La.1973); Louisiana Power and Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970); Favrot v. Favrot, 252 La. 192, 210 So.2d 316 (1968); Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967). Unless the ground urged for dismissal is free from doubt, the appeal should be maintained. Gulf States Utilities Co. v. Dixie Electric Membership Corp., 248 La. 458, 179 So.2d 637 (La.1965); Emmons v. Agricultural Ins. Co., 245 La. 411, 158 So.2d 594 (La.1963).

In accord with these principles, La.C.C.P. art. 2161 provides in pertinent part:

An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. (Emphasis provided.)

The implication from this article is that irregularities, errors or defects, as relates to an appeal, imputable in large measure to others than the appellant, will not defeat the right to an appeal.

The confusion arising in this case was caused by che combined errors of the trial judge, counsel for U.S. Fire, counsel for the Daspits, the deputy clerk, and counsel for appellant. Therefore, dismissal of Swann’s appeal of the U.S. Fire judgment, because of these technical errors, is not in keeping with the principles noted above.

Initially, the three separate cases were consolidated for trial. The trial judge’s written reasons for judgment referred to and disposed of the issues in all three cases under the single caption and number of the first filed, lowest numbered case. Then, contrary to the trial court’s directive in the reasons for judgment that a single judgment in conformity with the reasons be prepared by all counsel for the litigants, two separate judgments bearing the numbers assigned to two of the suits, judgments which together did not conform with the reasons for judgment but which did treat of the claims in all three cases, were presented by counsel for the Daspits and for U.S. Fire, and, unfortunately, signed by the trial judge.

At this point, counsel for Swann, in petitioning for his order of appeal, used in his pleading the same caption and number as did the trial judge in his reasons for judgment. This did not, perhaps, clearly indicate that judgments in all three cases were being appealed. Nevertheless, the clerk of court apparently understood what Swann intended for he sent out the “Notice of Appeal” to the attorneys for all the parties indicating on that notice that an appeal was being taken in all three cases. Thus, whatever the ambiguity in Swann’s petition for an order of appeal, it was clarified by the notification to all parties that an appeal was being taken in each of the three cases.

At the time the notice of appeal was sent, counsel for Swann still had thirty days left to perfect a devolutive appeal in the U.S. Fire case. Had the notice from the clerk of court indicated that he had not already done so he would have been able to appeal timely in that lawsuit. Instead, it was not until after appellant’s delays had run that he was notified by the clerk (who was apparently urged to do so by counsel for U.S. Fire) that the inclusion of the U.S. Fire case in the notice of appeal was a mistake, and that in fact judgment in that case had not been appealed. From all of the above, it is readily apparent that it was the combination of all of these errors which has placed this case in the posture in which we presently find it.

No good purpose is served by dismissal of Swann’s appeal of the U.S. Fire judgment. No undue prejudice to U.S. Fire will arise from reinstatement of the appeal. Counsel for all parties were aware of the error caused by the dual judgments. Counsel for U.S. Fire knew of Swann’s intention to utilize an appeal as the vehicle for correcting the error. U.S. Fire was also timely informed by the clerk of court through the Notice of Appeal that the three cases had been appealed. U.S. Fire cannot, and in fact has not, contended that it was not aware of the fact that its favorable judgment had been appealed. Rather, U.S. Fire seeks dismissal of the appeal based upon what are essentially technical errors.

Furthermore, allowing dismissal of the appeal from the $75,000 judgment in favor of U.S. Fire might well result in the incongruous situation (should Swann succeed in having Daspits’ $105,000 judgment reversed) of Swann’s being indebted to U.S. Fire for a portion of the $105,000 indebtedness ultimately found not due and owing by Swann.

For all of the foregoing reasons we find that Swann did appeal on August 7, 1981 the judgments entered as relates to all three suits, No. 54,668, 54,773 and No. 56,-126, and that the Court of Appeal erroneously dismissed Swann’s appeal in No. 56,-126.

Decree

The judgment of the Court of Appeal dismissing Swann’s appeal from the judgment in favor of U.S. Fire in No. 56,126 is reversed; the appeal is reinstated, and the case remanded to the Court of Appeal.

COURT OF APPEAL JUDGMENT REVERSED; APPEAL REINSTATED; REMANDED TO THE COURT OF APPEAL.

      . Ellen Tooley Swann, individually and as ad-ministratrix of the succession of her deceased husband Francis E. Swann, is a party in each of three lawsuits in the district court. She and her deceased husband will occasionally be referred to in this opinion as Swann.

      . James E. Daspit and his wife, Janet S. Daspit, d/b/a Swann Supply v. Ellen Tooley Swann, widow of Francis E. Swann, Individually, and as Administratrix of the Succession of Francis E. Swann, No. 54,668 on the docket of the Twenty-Second Judicial District Court for the Parish of St. Tammany, filed 1/30/79.

      . Ellen T. Swann v. James E. Daspit, No. 54,-773, on the docket of the Twenty-Second Judicial District Court Parish of St. Tammany, filed 2/7/79.

      . U.S. Fire Insurance Company v. Ellen Tooley Swann, individually and as administratrix of the Succession of Francis E. Swann, No. 56,-126, on the docket of the Twenty-Second Judicial District Court, Parish of St. Tammany, filed 6/12/79.

      . It was stated in oral argument by counsel for U.S. Fire that all parties were aware of the error and aware that a correction was necessary.

      . The documents we are considering, to determine whether any appeal was timely filed, all relate to the filing of a suspensive appeal. However, we are not here called upon to determine whether a timely suspensive appeal was filed, but only whether any appeal was timely filed.

      . La.C.C.P. art. 2087 provides:
      Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      ís) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolu-tive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.

      . The petition did refer to a judgment of July 16, 1981. The record, however, shows that no judgment was signed on that date. Rather, one was signed on July 15, 1981 and one was signed on July 17, 1981. Counsel for U.S. Fire contends that the July 17, 1981 judgment was filed on July 16th although not signed until the 17th and that this is the judgment referred to in the petition.


author: LEMMON, Justice. WATSON, Justice, DENNIS, Justice, LEMMON, Justice,

text:
    STATE ex rel. Alex ELAIRE v. Frank C. BLACKBURN, Warden.
    No. 81-KH-2629.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Dec. 17, 1982.

      Paul B. Deal, New Orleans, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Cliffe LaBorde, III, Asst. Dist. Atty., for respondent.
   LEMMON, Justice.

The principal issue in this matter is whether relator was validly convicted of attempted second degree murder under the pertinent statutes which at the time of the offense defined second degree murder only as an unintentional killing committed in the course of certain enumerated felonies. Because the trial court’s denial of relator’s postconviction application was contrary to our decision in State v. Booker, 385 So.2d 1186 (La.1980), and because some members of the court wished to reconsider that sharply divided decision, we granted certio-rari. 411 So.2d 46.

I.

In the course of an early morning argument, relator shot the victim in the throat, because he believed that the victim had been instrumental in sending his brother to the penitentiary. Relator was tried on an indictment charging attempted first degree murder. The trial judge instructed the jury as to the essential elements of attempted first degree murder. Although he named the lesser offenses which were responsive verdicts listed in La.C.Cr.P. Art. 814, subd. A(2), he did not state the essential elements of the lesser offenses. He further stated the penalty for attempting an offense punishable by death or by life imprisonment, but he did not specify the penalty for attempted first degree murder or for any of the lesser offenses. Defense counsel did not request any special instructions on responsive verdicts and did not object to the instructions or to the responsive verdicts given by the trial judge. The jury returned a statutorily responsive verdict of attempted second degree murder.

When relator’s appeal was not timely, the trial court summarily denied a motion for an out-of-time appeal. This court ordered an evidentiary hearing to determine whether relator had waived his right to appeal, after which the motion was again denied.

Relator then filed the present application for postconviction relief, in which he contended that the evidence was insufficient to support the conviction. Because this due process contention is one of constitutional dimension, it is properly reviewable on a postconviction application. La.C.Cr.P. Art. 930.3; State ex rel Womack v. Blackburn, 393 So.2d 1216 (La.1981). After the trial court’s denial, we granted the application.

II.

Although relator bases his complaint on insufficiency of evidence to support a second degree murder conviction, the problem occurred because the trial court erroneously instructed the jury that attempted second degree murder was a proper responsive verdict under the existing statutes and the evidence presented at trial. We ultimately decline to grant relator relief because he failed to object to the instructions concerning responsive verdicts, but we will discuss the Louisiana system of responsive verdicts and the recent decisions in this area of the law in an attempt to fit this decision into the emerging patterns.

A system of responsive verdicts involves benefits to both the prosecution and the defense. On the one hand, the system may benefit the prosecution by providing an alternative to acquittal when the evidence does not establish an essential element of the charged offense; on the other hand, the system may benefit the defense when the jury would prefer a choice between the drastic extremes of guilty of the charged offense and not guilty. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Moreover, the “third option” insures the accused the full benefit of the reasonable doubt standard. Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973).

In Louisiana the accused is statutorily entitled to have the trial court instruct the jury as to the law on the charged offense and on any responsive offenses. La.C.Cr.P. Art. 803, 814, 815. Therefore, when the accused requests and is refused an instruction on a lesser and included offense, or when the accused timely objects to the court’s failure to give a responsive offense instruction to which he is statutorily entitled, the conviction may be reversed. See State v. Dufore, 424 So.2d 256 (La.1982), decided this date.

It is important to distinguish between those responsive verdicts which are lesser and included grades of the charged offense and those responsive verdicts which are not lesser and included offenses but are nevertheless included in La.C.Cr.P. Art. 814. Lesser and included grades of the charged offense are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Cooley, 257 So.2d 400 (La.1972). Thus, the evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense. However, in cases of the legislatively provided responsive verdicts which are not truly lesser and included grades of the charged offense, evidence which would support a conviction of the greater offense would not necessarily support a conviction of the legislatively responsive offense. In such cases, the evidence may be insufficient to establish an essential element of the lesser crime which is not an essential element of the greater crime.

In State v. Peterson, 290 So.2d 307 (La.1974), the defendant was charged with murder, and the jury returned a responsive verdict of manslaughter. Defendant argued that the evidence did not support the verdict because there was no proof of “sudden passion” or “heat of blood”. La.R.S. 14:31. The court held that passion is not an essential element of the lesser offense of manslaughter, but rather is a mitigating factor, in the nature of a defense to the crime of murder, which need not be proved by the prosecution. However, the court in dicta stated that when the evidence is sufficient to support a conviction of the greater offense charged, the reviewing court need not determine whether the evidence supports the responsive verdict returned by the jury. Stated otherwise, the jury may return any legislatively provided responsive verdict, whether or not the evidence supports that verdict, as long as the evidence was sufficient to support a conviction of the charged offense.

In State v. Dauzat, cited in footnote 5, this court, in the context of an attempted murder charge and an aggravated battery responsive verdict, restricted the Cooley and Peterson analysis to those cases in which the responsive verdict returned by the jury was truly a lesser and included grade of the charged offense. Dauzat fired at and missed the victim, but the shot struck the victim’s automobile. On appeal from a conviction of the legislatively responsive offense of aggravated battery, this court reversed and remanded for a new trial, because the evidence did not support a finding of the use of force or violence upon the person of the victim, although the evidence would have supported a conviction of attempted murder.

While this court did not expressly rule on the question, the decision strongly implies that the trial judge erred in giving an instruction which included a responsive verdict that could not be supported by the evidence presented during the trial. The trial judge in the Dauzat case undoubtedly thought that he was required to instruct the jury on a responsive verdict included in La.C.Cr.P. Art. 814, whether or not the evidence supported a verdict. See State v. Thibodeaux, 380 So.2d 59 (La.1980).

Act 763 of 1982, among other things, added Section C to Article 814. The article now accords discretion to the trial judge, on motion of either side, to refuse to instruct the jury on a responsive verdict included in Article 814, as follows:

“Upon motion of the state or the defense, the court may, in its discretion, exclude a responsive verdict listed in Subarticle A if after all the evidence has been submitted there is no evidence to establish that responsive verdict.” La.C.Cr.P. Art. 814 C. (Emphasis added.)

Thus, under the present law, a trial judge can now refuse to instruct the jury on a responsive verdict, even though the offense is listed in Article 814, if the court determines that there is “no evidence” to support such a verdict.

III.

We now turn to a review of the Booker decision, relied on by relator. At the time of this crime, the only definition of second degree murder was a killing while the offender was engaged in the perpetration or attempted perpetration of a felony enumerated in the statute. Since no evidence whatsoever was introduced to establish the commission of any felony enumerated in the statute, relator contends that an essential element of the crime (the perpetration or attempted perpetration of an enumerated felony) was not proved. Citing Booker, relator argues that he must be discharged. See United States v. Burks, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1978).

Booker was tried for attempted first degree murder under the same statutory scheme as was in effect in this case. Because the jury convicted Booker of attempted second degree murder, the issue presented by Booker’s direct appeal was virtually the same as the issue in this postconviction proceeding.

In Booker, the court in a four-way split decision reversed the conviction and ordered a new trial. Justice Dennis’ plurality opinion (joined by Justice Calogero) reasoned that the indictment did not give defendant sufficient notice of the essential elements of the offense for which he was eventually convicted. This author’s concurring opinion (joined by Chief Justice Dixon) reasoned that second degree murder at the time was an unintentional killing in the course of an enumerated felony and that there was no such crime as attempted second degree murder, inasmuch as an attempt is a specific intent crime and a person cannot specifically intend to do something unintentionally. Justice Blanche, who was the author of the Booker opinion on original hearing, concurred in reversing the conviction but dissented from remanding for a new trial, concluding that defendant should be discharged when the evidence does not support the conviction. Justice Marcus was the lone dissenter from reversing the conviction, adhering to the view, expressed earlier in State v. Peterson, above, and other cases, that the jury may return any legislatively authorized responsive verdict, whether or not the evidence supports that verdict, as long as the evidence was sufficient to support a conviction for the offense charged.

IV.

We now adopt an approach (1) which recognizes the efficacy of the Cooley and Peterson analysis, but is nevertheless consistent with the Dauzat opinion and with the 1982 amendment to La.C.Cr.P. Art. 814, and (2) which recognizes the requirement that the defendant make a contemporaneous objection to the instruction on respon-sive verdicts in order to complain on appeal of the insufficiency of evidence supporting the responsive verdict.

The theory expressed in Justice Marcus’ dissent in Booker and earlier in the Peterson case (that a jury may return a legislatively approved responsive verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to sustain a conviction of the charged offense) recogmzes the legitimacy of a “compromise” verdict which does not “fit” the evidence, but which (for whatever reason) the jurors deemed to be fair. This view, which accords the jury the prerogative to return a verdict of a lesser offense which is not supported by the evidence, comports with the spirit of the responsive verdict article, since one major purpose of that article was to relieve the trial judge from having to review the evidence actually presented at the trial in order to decide which responsive verdicts should be given to the jury. See La.C.Cr.P. Art. 814 Official Revision Comment (a).

The 1982 amendment adding Section C to Article 814 now gives the trial judge discretion, on motion of either side, to exclude a responsive verdict which is not supported by the evidence. Therefore, even if the offense is legislatively designated as responsive by Article 814, the defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. If the court overrules the objection and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict. However, if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.

It would be unfair to permit the defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object. Therefore, at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.

In this regard we distinguish State v. Williamson, 389 So.2d 1328 (La.1980), in which the trial judge, with the concurrence of the prosecution and the defense, instructed the jury in accordance with the new law that did not become effective until a few days after the crime. The evidence supported the jury’s responsive verdict under the law existing at the time of the crime, but did not support the responsive verdict defined in the instruction to the jury. This court reversed, despite the absence of a contemporaneous objection, because the mutual error in defining the crime (of which Williamson was convicted) was so significant as to violate the fundamental requirements of due process.

V.

Significantly, defense counsel in the present case did not object (at a time when the trial judge could have taken corrective action) to the jury instruction which included attempted second degree murder as a responsive verdict. Furthermore, the evidence was clearly sufficient to establish guilt of the charged offense of attempted first degree murder. Under these circumstances, defense counsel very well may have decided not to object, as a matter of trial strategy, because he was satisfied to have the case go to the jury with an option to return a verdict reducing the grade of the offense despite the evidence presented.

The jury’s verdict was apparently a compromise decision to find defendant guilty of something less than attempted first degree murder. The jury chose the next highest offense from the list of responsive verdicts. While the evidence did not support a conviction of the offense chosen by the jury, the evidence would have supported a conviction of the charged offense. Because defendant did not object (because of an oversight or as a matter of trial strategy) to the instruction, which in effect informed the jury that it could properly return a verdict of attempted second degree murder, defendant cannot later complain that the evidence (which would have supported a conviction of the offense charged) did not support the lesser verdict chosen by the jury.

Accordingly, the judgment of the trial court denying defendant’s application for postconviction relief is affirmed.

WATSON, J., concurs in the result and assigns reasons.

DIXON, C.J., and CALOGERO, J., dissent.

DENNIS, J., dissents with reasons.

WATSON, Justice,

concurring in the result.

I concur in the result reached by the majority, but I respectfully decline to join in the opinion which consists largely of dicta.

With respect to State v. Booker, 385 So.2d 1186 (La.,1980), discussed by the majority, I note that I inadvertently indicated my dissent on rehearing was for reasons by Blanche, J., while I should have indicated that I agreed with the reasons given by Marcus, J.

DENNIS, Justice,

dissenting.

The Supreme Court in Jackson v. Virginia, 443 U.S. 309, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) created a new rule of law — the constitution now prohibits conviction of any person except upon proof sufficient that “a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 99 S.Ct. at 2789, 2793. Before this, the federal courts had applied to state convictions the “no evidence” rule of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, which held that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. But the Jackson court recognized that “[t]he Thompson ‘no evidence’ rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt” 99 S.Ct. at 2789 and its application “to assess the validity of a criminal conviction after Winship could lead to absurdly unjust results.” Id. 99 S.Ct. at 2790, n. 14. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the high court explicitly held “that the Due Process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id. at 364, 90 S.Ct. at 1072.

Accordingly, Due Process now requires a reasonable sufficiency of evidence of every fact upon which a criminal defendant’s conviction is based. If this were not the case, a legislature would have almost complete discretion to make any crime a responsive verdict to a charged offense. Compromise verdicts having no relation to the evidence could be returned and not violate the Due Process clause. Even a casual reading of Winship and Jackson and the reasons given there for making the beyond-a-reasonable-doubt rule part of the constitution and a tenet of federal habeas review convinces one this was not the high court’s intention. For example, the Jackson court noted at footnote 10 that “[t]he power of the fact-finder to err upon the side of mercy, however, has never been thought to include a power to enter an unreasonable verdict of guilty.” 99 S.Ct. at 2788 n. 10, citing United Brotherhood, etc. v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 782, 91 L.Ed. 973. Cf. Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 585-586, 43 L.Ed. 873 (1899).

This court has habeas powers and obligations of its own. La. Const, art. 5 § 2. We must entertain a claim by a prisoner that he or she is being held in custody in violation of the constitution or laws of the United States or of this state. C.Cr.P. art. 351 et seq. Under the Winship and Jackson decisions, it is clear that a prisoner who alleges that the evidence in support of his convictions cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim. Jackson v. Virginia, 99 S.Ct. at 2790. Thus, it follows that such a claim is cognizable in a habeas proceeding in this court.

The majority correctly concludes that the evidence in this case does not support a conviction for attempted second degree murder. However, it refuses to reverse the conviction based on insufficient evidence because the defendant failed to object to the trial judge’s instruction to the effect that attempted second degree murder could be a proper verdict. This amounts to a failure by this court to perform its duty under habeas corpus upon a clear showing that a rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt. The majority’s decision directly conflicts with Winship and Jackson. It also contravenes principles underlying cases of this court which have held that insufficiency of evidence can be recognized even on the court’s own motion. See, State v. Raymo, 419 So.2d 858 (La.1982), State ex rel Womack v. Blackburn, 393 So.2d 1216 (La.1981). “[I]f the error comes to the court’s attention, the court should recognize it, because no one should remain in prison if he has been convicted on insufficient evidence.” State ex rel Womack v. Blackburn, 393 So.2d 1216, 1220 n. 1 (Lemmon, J., concurring.).

Therefore, I respectfully dissent.

LEMMON, Justice,

concurring in the denial of the rehearing.

The decision in State ex rel Womack v. Blackburn, 393 So.2d 1216 (La.1981), certainly stands for the propositions that no one who has been convicted on insufficient evidence should remain in the penitentiary and that the issue may be raised (even for the first time) in a postconviction application. However, the issue in Womack was whether the evidence was sufficient to support a verdict either of guilty as charged or of guilty of any lesser included responsive offense. State v. Byrd, 385 So.2d 248 (La.1980); La.C.Cr.P. Art. 821.

In the present case, if the jury had returned a verdict of guilty as charged, then there would be no doubt that the evidence supported the jury’s findings as to all essential elements of the charged crime. However, the jury in the present case chose to return a responsive verdict, and we affirmed the conviction (1) because the evidence would have supported a conviction of the charged offense and (2) because the defendant did not object (purposely or inadvertently) to the erroneous instruction on the responsive offense.

      . At the time of the offense, La.R.S. 14:30 and 30.1, defining first and second degree murder, provided as follows:
      § 30 “First degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.
      “Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit or [sic] parole, probation, or suspension of sentence in accordance with the recommendation of the jury.”
      § 30.1 “Second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of [enumerated felonies] even though he has no intent to kill or to inflict great bodily harm.
      “Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of probation or suspension of sentence and shall not be eligible for parole for forty years.”

      . As the Court stated in the Beck case:
      “Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” 447 U.S. at 634, 100 S.Ct. at 2388.

      . La.C.Cr.P. Art. 803 provides in part:
      “When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.”

      .In La.C.Cr.P. Art. 814, the Legislature has enumerated specific responsive verdicts for the most common crimes in order to resolve conflicts in judicial decisions as to which verdicts were responsive. See Official Revision Comment (a).

      .For example, aggravated battery is listed in Article 814, subd. A(4) as a responsive verdict to the offense of attempted first and second degree murder. See La.C.Cr.P. Art. 814, subd. A(2) and (4). However, attempted murder does not include an essential element of aggravated battery, namely the use of force or violence upon the person of the victim or the intentional administration of a poison or noxious substance. Compare La.R.S. 14:30 and 30.1 with La.R.S. 14:33 and 34. Neither does an attempted murder require the use of a dangerous weapon. See La.R.S. 14:2(3). See also State v. Dauzat, 392 So.2d 393 (La.1980).

      . In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), a plurality of the Court criticized the Louisiana responsive verdict system, in the context of a capital case with a mandatory death sentence, stating that the system “plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate”, even if the lesser verdict is not supported by the evidence.

      . In Peterson all of the elements of manslaughter were included in the greater offense of murder. (Note that the manslaughter statute includes both intentional killings and misdemean- or manslaughter).

      . Interestingly, the Legislature used the phrase “no evidence”, ever after the decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), replaced that test for sufficiency of evidence with a different standard. We need not decide in this case whether to construe the standard in Article 814 C as fulfilled when the evidence would be insufficient, as a matter of law, to support a verdict of guilty of the responsive offense. See the standard used in La.C.Cr.P. Art. 821, providing for postverdict judgment of acquittal. We note, however, that the 1982 amendment to Article 814 has the effect of authorizing the trial judge to grant a judgment of acquittal to responsive verdicts which are not supported by the evidence.

      . Booker was not discharged, as is necessary when a conviction is reversed because of insufficient evidence. Rather, this court on rehearing ordered a new trial because of trial court error in the course of the proceedings.

      . The indictment alerted defendant only that the state would endeavor to prove that he attempted to kill and made no mention of any other felony. A majority of the court, however, is apparently satisfied that the responsive verdict article (La.C.Cr.P. Art. 814) gives defendant sufficient notice that he must also prepare to meet the elements of enumerated responsive offenses. See State v. Dauzat, above.

      .Subsequently, in State v. Stewart, 400 So.2d 633 (La.1981), this court (with three justices pro tempore participating) upheld a verdict of attempted second degree murder under circumstances in which the evidence was sufficient to establish the attempted commission of one of the enumerated felonies.
      The author of the present opinion concurred in Stewart, despite his view expressed in Booker. The author is now convinced that there is such a crime as attempted second degree murder (as then defined), since the definition of attempted second degree (felony) murder may reasonably be construed to include the conduct of one who either does or does not specifically intend to kill, when the killing occurs during the commission of an enumerated felony. La. R.S. 14:30.1 defined (and still defines) second degree murder as a homicide committed in the course of an enumerated felony, “even though” the offender had no specific intent to kill. Therefore, it is reasonable to assume that use of the words “even though” (rather than “when”) signified a legislative intent for the statute to apply when the homicide was either intentional or nonintentional.

      . Justice Watson joined in Justice Blanche’s dissent.

      . The Dauzat opinion does not reveal whether the defendant made a contemporaneous objection to the jury instruction or to the list of responsive verdicts.

      . Of course, this applies only to a responsive verdict that is listed in Article 814 but is not truly a lesser and included grade of the charged offense.
      Furthermore, if the prosecution objects (and the objection is not joined by defendant), and this objection is overruled, defendant should not, for the reasons stated herein, be permitted to complain on appeal of the insufficiency of evidence to support the responsive offense, as long as the evidence was sufficient to support the offense charged. To hold otherwise would permit defendant to gamble on getting the benefit of the lesser verdict (and acquittal of the offense charged) and then complain for the first time on appeal that the jury should not have been permitted to consider the unsupported responsive verdict.

      . Since this decision seeks to resolve the Booker impasse on the basis of a failure to object timely, we do not necessarily imply that we will not continue to apply Dauzat when there is a timely objection and the trial judge fails to correct the error.

      . In this regard, it is important to note that the trial judge failed to instruct the jury on the essential elements of the legislatively responsive offenses and that defense counsel raised no objection to his failure to do so.

      . Had defendant assigned as error the substantial (but unobjected to) error committed by the trial court in failing to accurately define the responsive offenses, we might apply the test set forth in our recent opinion in State v. Mart, 419 So.2d 1216 (La.1982). There, the court said:
      “[T]his court has recognized exceptions to the rule’s seemingly inflexible assertion that trial error, unless contemporaneously objected to, cannot be asserted on appeal. In State v. Williamson, 389 So.2d 1328 (La.1980), fundamentally erroneous misstatements of the essential elements of the charged offense were found to require reversal, despite the defendant’s failure to raise an objection in the trial court. In that case this court apparently adopted a view, not totally unlike the federal ‘plain error’ approach, that such fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the factfinding process that due process of law requires reversal, even in the absence of compliance with legislative procedural mandates.”
      sfc sfc # sf< * *
      “When counsel for defendant fails to comply with the contemporaneous objection rule, even in the case of a fundamentally erroneous instruction on the elements of an offense, it is not unreasonable to require defendant to carry the burden of satisfying this court that the procedural default (that is, the failure to raise the complaint properly) was excusable and was not the result of trial strategy.” 419 So.2d at 1219.
      Compare Engles v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); U.S. v. Fra-

        dy, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

      . The only assignment of error in Womack’s application for postconviction relief was that the evidence did not support the conviction of guilty as charged. Accordingly, one may presume that the jury was properly instructed as to all of the elements of the charged offense. (There were no objections to the instructions, which were therefore not transcribed for the record on appeal.)

      . The instruction regarding the responsive offenses did not define the elements of those crimes. Thus, it appears that the verdict was a legislatively ordained “compromise”.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Ike THOMAS.
    No. 82-KA-0303.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren Hebert, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
    John Cornish, David Randall Buckley, Baton Rouge, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of attempted simple rape and a sentence of 12 years imprisonment. The principal issue, raised by way of a request for a review of patent errors, is whether attempted simple rape was a proper responsive verdict when defendant was charged with attempted aggravated rape of an 11-year old girl.

At the time of the offense (August 30, 1978), attempted simple rape was enumerated in La.C.Cr.P. Art. 814 subd. A(9) as a responsive verdict to attempted aggravated rape. Without objection, the trial judge instructed the jury (in accordance with the codal article) that attempted simple rape was a responsive verdict to the charged offense, and he informed the jury of the essential elements of both offenses and the penalties therefor. The jury returned a verdict of guilty of the responsive offense.

A lesser and included grade of the charged offense is one in which all of the essential elements of the lesser offense are also essential elements of the greater offense. The crime of attempted simple rape is not truly a lesser and included grade of attempted aggravated rape, since all of the essential elements of attempted simple rape are not included in the crime of attempted aggravated rape of a victim under the age of 12 years. Compare State v. Miller, 111 So.2d 108 (La.1959). Therefore, simple rape was listed as a responsive verdict in Article 814, evidence which was sufficient to support the charged offense was not necessarily sufficient to support the lesser offense. See State v. Dauzat, 392 So.2d 393 (La.1980).

Nevertheless, we have held that if the defendant does not timely object to an instruction on a responsive verdict which (although listed in Article 814) is not supported by the evidence and the jury returns a verdict of guilty of that responsive offense, the defendant may not complain on appeal that the evidence does not support the responsive verdict to which he failed to object. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), decided this date. Under such circumstances, the appellate court may affirm the conviction of the responsive offense, whether or not the evidence supports the verdict, as long as the evidence is sufficient to support the offense charged.

Here, the evidence was clearly sufficient to support the charged offense, and the defendant who failed to object to the responsive verdict instruction cannot now complain that the jury returned that responsive verdict.

The conviction and sentence are affirmed.

WATSON, J., concurs in the result.

DENNIS, J., dissents for the reasons he dissented in State ex rel. Elaine v. Blackburn, 424 So.2d 246 (La.1982).

      . Defendant’s other contentions lack any arguable merit and are treated in an unpublished appendix which is part of the official record in this case.

      . La.R.S. 14:42, defining aggravated rape, provides in part:
      “Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      “(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
      “(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
      “(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon; or
      “(4) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.”
      La.R.S. 14:43, defining simple rape, provides in part:
      “Simple rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      “1) Where the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by an intoxicating, narcotic, or anesthetic agent, administered by or with the privity of the offender; or when victim has such incapacity, by reason of a stupor or abnormal condition of mind from any cause, and the offender knew or should have known of the victim’s incapacity; or
      “2) Where the victim is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act; and the offender knew or should have known of the victim’s incapacity; or “3) Where the female victim submits under the belief that the person committing the act is her husband and such belief is intentionally induced by any artifice, pretense or concealment practices by the offender.”

      . Additionally, there was evidence in this case that defendant, by repeatedly slapping the victim, used force and that the attempted intercourse was therefore nonconsensual. The evidence, therefore, does support the responsive verdict. See State v. Miller, above.


author: LEMMON, Justice. WATSON, Justice,

text:
    STATE of Louisiana v. Calvin DUFORE.
    No. 82-KA-0425.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Richard Chaf-fin, Asst. Dist. Attys., for plaintiff-appellee.
    Keith B. Nordyke, Ed Walters, Moore & Walters, Baton Rouge, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of attempted simple burglary of a pharmacy and a sentence of two and one-half years imprisonment without benefit of probation, parole or suspension of sentence. We reverse because the trial court refused to accord defendant his statutory right to have the court instruct the jury as to the law applicable to responsive verdicts. See La.C.Cr.P. Art. 803.

I.

The principal factual evidence was presented by Elisa Gable, defendant’s girlfriend at the time of the crime. Defendant and David Stevenson picked up Miss Gable shortly before midnight, and defendant declared that they were going to “rob” a drugstore. Defendant drove around for a couple of hours, stating that he was waiting for the “proper time”. After driving in front of the Prescription Shop and checking the area for police, defendant parked in the rear of the store and attempted to dismantle the alarm system. When the alarm began making a faint buzzing sound, defendant then drove to the front of the building, where Stevenson got out of the car, broke the glass in the front door, and entered the building. Defendant drove to the corner, where he waited for a prearranged period of time before circling back and picking up Stevenson, who was carrying a bottle of pills.

Three months later Miss Gable provided the police with the information about the crime. Defendant and Stevenson were then arrested.

At defendant’s trial, after completion of the evidence, defendant requested the trial court to instruct the jury on the responsive verdicts of simple burglary and attempted simple burglary. The trial judge denied the request on the basis that simple burglary was not a lesser and included grade of the greater offense. The judge instructed the jury that the possible verdicts were (1) guilty of simple burglary of a pharmacy, (2) guilty of attempted simple burglary of a pharmacy, and (3) not guilty. The jury returned a responsive verdict of attempted simple burglary of a pharmacy.

II.

Burglary of a pharmacy has a mandatory minimum sentence and a prohibition against probation or parole, while simple burglary does not. Therefore, defendant would have benefitted considerably with regard to sentence exposure if the jury had returned a responsive verdict of the lesser offense.

La.C.Cr.P. Art. 803 mandates that the trial court shall charge the jury as to the law applicable to the charged offense and to any other offenses of which the accused could be found guilty under La.C.Cr.P. Art. 814 or 815. Since there are no statutory responsive verdicts provided in Article 814 for simple burglary of a pharmacy, the matter is controlled by Article 815, which provides that all lesser and included grades of the charged offense are responsive verdicts, even though the charged offense is a felony and the lesser offense is a misdemeanor. Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Cooley, 260 La. 768, 257 So.2d 400 (1972). Thus, evidence which supports a conviction of the charged offense necessarily supports a conviction of a lesser and included offense. Accordingly, when the accused requests an instruction to the jury on the law applicable to an offense which is truly a lesser and included grade of the charged offense, the trial court has no discretion to refuse to give the requested instruction.

Inasmuch as the defendant in this case specifically requested an instruction as to the law applicable to the offense of simple burglary and is statutorily entitled to such an instruction if simple burglary is a lesser and included grade of the charged offense, this decision turns on the determination of whether all of the elements of simple burglary are also essential elements of simple burglary of a pharmacy.

Both the lesser and the greater offenses require an unauthorized entry into a structure, while the greater offense requires the additional element that the structure is being “used in whole or in part for the sale, storage and/or dispensing of controlled dangerous substances”. Moreover, both the lesser and the greater offenses require the intent to commit a theft in the structure, while the greater offense requires the additional element of intent to commit the theft of a controlled dangerous substance. We therefore conclude that simple burglary is a lesser and included grade of the offense of simple burglary of a pharmacy.

Finally, the fact that the jury could rationally have returned a verdict of simple burglary of a pharmacy does not mean that the jury could not rationally return a verdict of simple burglary. The jury in fact chose to return a responsive verdict of attempted simple burglary of a pharmacy (although the evidence would have supported a conviction of the completed offense), and the jury might have returned an even lesser verdict if the requested instruction had been given. Since defendant was statutorily entitled to have the requested instruction given, the conviction based on the erroneous instruction (to which timely objection was made) must be set aside and the matter remanded for a new trial.

Accordingly, the conviction is set aside, and the case is remanded for further proceedings.

DENNIS, J., joins in the basic holding but does not agree with State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982).

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

Although the court must charge the jury of the law applicable to lesser included offenses under LSA-C.Cr.P. art. 803, the charges must be pertinent; there must be evidence which would support a conviction of the lesser offense. LSA-C.Cr.P. art. 807; State v. Anderson, 390 So.2d 878 (La., 1980); State v. Toomer, 395 So.2d 1320 (La., 1981). A trial judge is required “... to charge the jury as to the law applicable to the case, under which he is required to cover every phase of the case supported by the evidence, whether or not accepted by him as true.” (Emphasis supplied). State v. Marse, 365 So.2d 1319 at 1323 (La., 1978). A comment at 17 La.L.Rev. 211 points out that LSA-C.Cr.P. art. 803 can reasonably be interpreted as requiring only those charges of which the accused can be found guilty under the indictment and the evidence. The majority of other jurisdictions provide that there is no duty to instruct on lesser and included offenses in the absence of evidence tending to prove such offenses.

“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 343 at 350, 85 S.Ct. 1004 at 1009, 13 L.Ed.2d 882 at 888 (1965). Here, the factual element of a pharmacy was not disputed. The only evidence was that a pharmacy had been burglarized and that there was the intent to steal controlled dangerous substances. There was no conflicting evidence that any other type of structure had been entered or that there was a less specific criminal intent. Thus, the jury could not rationally have convicted Dufore of simple burglary rather than simple burglary of a pharmacy. See Hopper v. Evans, - U.S. -, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

I respectfully dissent.

      . According to Miss Gable, defendant told Stevenson where the drugs were located and instructed him to take the kind which could be sold quickly. Evidence at a pretrial hearing revealed that defendant was a, former police officer who had previously helped in a drug inventory at the store and who had thwarted a prior burglary attempt.

      . On the other hand, the Legislature in La.C.Cr.P. Art. 814 has enumerated specific responsive verdicts for the most common crimes. However, some of the responsive verdicts provided by legislative enactment are not truly lesser and included grades of the charged offense. Aggravated battery, for example, is listed as a responsive verdict to attempted murder, but the greater offense does not include all essential elements of aggravated battery. See State v. Dauzat, 392 So.2d 393 (La.1980).
      Following the Dauzat decision, the Legislature enacted Act 763 of 1982, adding Section C to Article 814. This amendment accords the trial court discretion, upon motion by either side, to refuse to instruct the jury on a responsive verdict, even though the offense is enumerated in Article 814, if the court determines that the evidence is insufficient to support that verdict. As noted above, however, this discretion exists only when the enumerated responsive verdict is not truly a lesser and included grade of the charged offense, and the accused must request the instruction (or object to the deficient instruction given by the court) in order to complain of the instruction on appeal or of the insufficiency of the evidence supporting the responsive verdict returned by the jury. La.C.Cr.P. Art. 841; State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), decided this date.

      . R.S. 14:62 defines simple burglary as:
      ‘‘Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60.”
      R.S. 14:62.1(A) defines simple burglary of a pharmacy as:
      “Simple burglary of a pharmacy is the unauthorized entry of any building, warehouse, physician’s office, hospital, pharmaceutical house, or other structure used in whole or in part for the sale, storage and/or dispensing of controlled dangerous substances, as defined in R.S. 40:961(7) with the intent to commit the theft of any drug which is defined as a controlled dangerous substance in R.S. 40:961(7) other than set forth in R.S. 14:60.”
      In this discussion, references are to the completed crime, rather than to the attempt, in order to facilitate conceptual analysis. The issue is not whether the particular verdict was correct, but whether the trial judge should have given the instruction on the lesser verdict.

      .In recognition of the fact that the greater offense has additional elements that the prosecution is obliged to prove, Act 144 of 1982 established a procedure whereby either the trial court or the appellate court may enter a postverdict judgment of guilty of a lesser and included offense, when the jury returns a verdict of the greater offense, but the evidence viewed in the light most favorable to the prosecution does not support one of those additional essential elements.
      Thus, when the jury returns a verdict of guilty of the charged offense of simple burglary of a pharmacy, and the evidence viewed in the light most favorable to the prosecution supports the jury’s finding that the defendant made an unauthorized entry into a structure with intent to commit theft therein, but does not support the jury’s additional finding that the structure was used in whole or in part for the sale, storage and/or dispensing of controlled dangerous substances, then the trial court or the appellate court must set aside the verdict and may enter a judgment of conviction of simple burglary. La.C.Cr.P. Art. 821. (Similarly, when the jury returns a verdict of guilty of the charged offense of simple burglary of a pharmacy, and the evidence viewed in the light most favorable to the prosecution supports a finding of an intent to commit a theft, but not of an intent to commit a theft of a controlled dangerous substance, then the trial court must set aside the verdict and may enter a judgment of conviction of simple burglary.)
      A similar procedure could be used in the case of burglary of an inhabited dwelling, when the evidence viewed in the light most favorable to the prosecution does not support a finding by the jury that the dwelling was inhabited.

      . The two offenses are also of the same “generic class”. See Comment, The Responsive Verdict in Louisiana Criminal Procedure, 5 La.L.Rev. 603 (1944).

      . We distinguish Hopper v. Evans, - U.S. -, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), in which the evidence (from defendant’s own mouth at trial) that he intended to kill the victim would not have supported a conviction of the lesser included noncapital offense of felony murder. The Court held that the conviction should stand, despite the trial court’s failure to instruct the jury on responsive verdicts, because “[a]n instruction on the offense of unintentional killing during this robbery was therefore not warranted.”
      In the present case, the charged offense and the responsive offense were not mutually exclusive (as are intentional murder and unintentional felony murder under the Alabama statutes).

      . LSA-R.S. 15:386, the article discussed in the law review, is the source of present art. 803 and the official revision comment states that art. 803 makes no change in the law.

      . Compare Subsection C of LSA-C.Cr.P. art. 814, added by Act No. 763 of 1982, and reading as follows:
      “C. Upon motion of the state or the defense, the court may, in its discretion, exclude a responsive verdict listed in Subarticle A if after all the evidence has been submitted there is no evidence to establish that responsive verdict.”