State v. Johnston

• Decision Date: 11 December 1944
• Docket Number: 37676.
• Citation: 20 So.2d 741,207 La. 161
• Court: Louisiana Supreme Court
• Parties: STATE v. JOHNSTON

20 So.2d 741

207 La. 161

STATE v. JOHNSTON

No. 37676.

Supreme Court of Louisiana

December 11, 1944

Rehearing Denied Jan. 15, 1945.

HAMITER Justice.

Chandler C Luzenberg, Sr. and Chandler C. Luzenber, Jr., both ot New Orleans, for appellant.

Fred S LeBlanc, Atty. Gen., Michael E. Culligan, Asst. Atty. Gen J. Bernard Cocke, Dist. Atty., and John d. Schilleci, Asst. Dist. Atty., both of New Orleans, for appellee.

On the night of Sunday, May 28, 1944, Alexander Johnston, the defendant herein and then a police officer of the City of New Orleans, became engaged in an argument and fight with a soldier while they were drinking together at a liquor establishment located on the corner of St. Philip and Broad Streets in that city.

When the soldier fled, Johnston, in an intoxicated condition and dressed in his summer police uniform, attempted to follow in pursuit, running along Broad Street and discharging his police regulation revolver three or four times as he ran. This gun, having a six inch barrel, was chambered for six 38 caliber special cartridges.

Turning off Broad Street, defendant forcibly entered the residence of Gilbert Chatagnier at 2652 Ursuline Avenue, this being accomplished by his breaking the front door's yale lock. To Mr. and Mrs. Chatagnier, who were in the front room of their home, he spoke demandingly: "Where is my man? Tell me where he is or I will kill you." Simultaneously he pointed his pistol directly at them and pulled its trigger several times. Fortunately it clicked; it did not fire.

Then he went through the rear portion of the house and into the back yard when there were gathered about ten other persons, guest of the Chatagniers at a crayfish party, including Mr. Rene A. Louapre. To these he expressed a similar demand for "his man", all while pointing and clicking the gun at them. Many had heard, a few moments earlier, the sounds from the shooting done by defendant on Broad Street, a short distance away.

While he was in the back yard, Mrs. Chatagnier called for police assistance. Arriving about ten minutes later, the officers found and arrested defendant in an alleyway, several doors from the Chatagnier residence, to which he had gone after leaving the premises. In his left hand, when arrested, was his police regulation revolver, the cylinder of which contained four empty shells; in his right hand were two loaded cartridges. Two additional unexploded shells were discovered the following morning near the place of arrest.

Defendant, a complete stranger to the Chatagniers and to their guests, was highly and obviously intoxicated during the entire period of the disturbance.

In a bill of information filed under article 37 of the Louisiana Criminal Code, defendant was charged with having "assaulted one Rene A. Louapre and one Gilbert Chatagnier with a dangerous weapon, to-wit: a revolver."

After trial by the judge of the criminal district court he was found guilty as charged. Thereupon he filed a motion for a new trial, complaining that the state did not prove that the revolver, at the time of the offense, was loaded; hence, he contended, it was not a dangerous weapon. Further, he complained that he was so much under the influence of intoxicating liquor that he could not entertain the criminal intent necessary to constitute the crime charged.

On the court's overruling of the motion, defendant reserved a bill of exceptions. Thereafter he was sentenced to pay a fine for $300 and to serve a term of one year in the parish prison; and, in default of the payment of the fine, to serve an additional term of one year.

From the conviction and sentence defendant appealed, and he is now asking our consideration of the complaints made in his motion for a new trial.

With reference to defendant's contention that the revolver was not loaded and, consequently, was not a dangerous weapon, the trial judge in his per curiam states in part:

"The pistol used by the defendant is an old thirty-eight 'long' caliber six-shooter official police revolver. I have examined it. The cylinder is slightly loose. The trigger can be pulled and clicked and revolve the cylinder containing the cartridges without exploding them. The defendant when arrested in an alleyway where he was hiding held the pistol in his left hand and two loaded cartridges in his right. he had previously discarded two other loaded cartridges, which were found in the alleyway where he was hiding. A police officer testified that the pistol contained four exploded cartridges. Considering the evidence as a whole, particularly the fact that the defendant was seeking to avoid arrest, the conclusion is fair that the defendant at the time of his arrest was preparing his defense by removing the two loaded cartridges from his pistol, and disposing of two other loaded cartridges by hiding them in the alleyway.

"I am convinced that when the defendant assaulted the complainants his pistol contained four exploded and two unexploded cartridges, and that when he pulled its trigger while assaulting the complainants the loaded cartridges did not explode, because he pulled the trigger only sufficiently to cause it to click without striking the loaded cartridges, and merely causing the cylinder to revolve. * * * "

Further the judge says: "But even if the defendant's pistol were not loaded at the time that he committed the assault that fact would not constitute a defense." And he supports this conclusion with well considered reasons.

On this review we shall not pass upon the issue of whether or not there was sufficient evidence to sustain the trial court's announced finding of fact. Instead, it will be assumed that the revolver was not loaded at the time it was pointed and clicked at Mr. and Mrs. Chatagnier and their guests, a position contended for by defendant and one most favorable to him; and we shall attempt to determine only the resulting question of law, namely; Does an assault with an unloaded revolver, under the circumstances of this case, constitute an assault with a dangerous weapon?

The provisions of the Louisiana Criminal Code relative to assault read as follows:

"Art 36. Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a batter."

"Art. 37. Aggravated Assault is assault committed with a dangerous weapon."

"Art. 2. In this Code the terms enumerated shall have the designated meanings:

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