Glassberg, In re

• Decision Date: 11 June 1956
• Docket Number: No. 42871,42871
• Citation: 88 So.2d 707,230 La. 396
• Parties: In the Interest of Jeffery GLASSBERG.
• Court: Louisiana Supreme Court

Page 707

88 So.2d 707

230 La. 396

In the Interest of Jeffery GLASSBERG.

No. 42871.

Supreme Court of Louisiana.

June 11, 1956.

F. Irvin Dymond, New Orleans, for defendant-appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., George M. McCulloch, Jr., Edward K. Pinner, Sr., Asst. Dist. Attys., New Orleans, for appellee.

HAMITER, Justice.

Jeffery Glassberg (age 13) was charged in the Juvenile Court for the Parish of Orleans, through a petition filed by the probation department thereof, with being a juvenile delinquent in that he committed aggravated battery on one Barbara Ann Caire (age 14) by shooting her in the face with a dangerous weapon, to-wit: An 8 MM Mauser rifle. In accordance with the petition he was adjudged delinquent; and he was placed on probation, in the custody of his parents, for a period of three years. From the judgment he has appealed.

The record discloses that during the afternoon of November 21, 1955 appellant went into the yard of a neighbor to play with other children who were there, he taking the rifle with him and initially placing it on a 'shoot-the-shoot' (a slide). In the chamber of the gun was a cartridge containing paper wadding. As to whether he was responsible for the loading is a question on which the testimony is conflicting and unsatisfactory. Nevertheless, on his regaining possession of and holding the gun later in the afternoon it discharged and inflicted the injury to Miss Caire. Filing of the instant charge followed

Battery is the intentional use of force or violence upon the person of another. LSA-R.S. 14:33. Aggravated battery, with the commission of which appellant was charged, is a battery committed with a dangerous weapon. LSA-R.S. 14:34.

Appellant's counsel concedes that general criminal intent is sufficient to sustain the charge of aggravated battery, a specific intent being unnecessary. However, he urges that in this cause no general criminal intent was proved and, therefore, the juvenile judge erred when reasoning and concluding as follows: 'While there does not appear from the evidence submitted any intention on the part of Jeffery Glassberg to deliberately harm Barbara Ann Caire, certainly the injury suffered by Barbara Ann Caire was a result of Jeffery's action in pointing the gun in her direction. There must, therefore, be imputed to him general criminal intent arising from the reasonable result of his act. * * *'

According to LSA -R.S. 14:10(2) 'General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.'

Pertinent also in determining when general criminal intent is present are observations contained in certain decisions of this court. Thus, in State v. Howard et al., 162 La. 719, 111 So. 72, 76, it was stated: 'While no specific intent is required in 'shooting at a dwelling house,' yet it is legally impossible that any crime at all can exist, without combination of criminal act and criminal intent, or the intentional doing of a wropgful act. * * *

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"In other words, where an act is prohibited on pain of punishment, criminal intent is nothing more than intention to do the act, provided the wrongdoer is a person capable of entertaining criminal intent, and acts without justification or excuse.' Clark's Criminal Law (2d Ed.) pp. 14 and 50.'

Again, in State v. Fulco, 194 La. 545, 194 So. 14, 17 we observed: 'Intent is an element of voluntary action and as all crimes, except those of omission, must be voluntary actions, intent is a constituent element of all criminal acts. But it is not necessary for an act to amount to a statutory crime that the offender must intend to do the crime to which his act amounts, but it is necessary that he intended to do the act which constitutes the crime.'

To warrant a conclusion in the instant case that criminal intent was present, and hence that aggravated battery was committed, a showing that appellant intended to injure Barbara Ann Caire was not essential; only necessary was a proving that he voluntarily committed the act which resulted in her injury. For example, the existence of general criminal intent could be concluded if proof were made that appellant had voluntarily pulled the trigger of the gun to discharge it, for then he would have intentionally committed an act which under the circumstances might reasonably be expected to result in criminal conseqnences--a battery on one of the children with whom he was playing at the time

However, according to our appreciation of the record appellant's pointing of the gun in the general direction of Miss Caire and the discharging of it with the resulting injury were wholly accidental acts. He emphatically denied having intentionally aimed at anyone or pulled the trigger, steadfastly maintaining that the gun fired accidentally as he arose from the ground with his dog. And the testimony of...