State v. Sterling , 1981 La. LEXIS 11209 ( 1981 )

PATRICK M. SCHOTT, Justice Ad Hoc.¹

Defendant was charged by grand jury indictment with first degree murder of Roosevelt Slack in violation of LSA — R.S. 14:30. He was convicted of second degree murder and sentenced to life imprisonment.

An eye witness testified that he heard a disturbance down the hall of a housing project where he lived and saw the victim pleading for mercy as one subject shot him several times. As the victim was trying to run away he collapsed and the defendant stood over him and shot him several more times.

Defendant relies on three assignments of error but since the first is dispositive we need not address the other two. The first assignment is based on the proposition that the jury could not properly convict defendant of second degree murder as a lesser included offense of first degree murder on the facts of this case.

This case is indistinguishable from State v. Booker, La., 385 So.2d 1186. Here the offense took place in February, 1979, while, in Booker, it took place in January, 1979, so that the statutory scheme was the same for both cases. Here, as in Booker, there was no proof of an underlying felony to support a conviction of second degree murder.

Accordingly, the conviction is reversed and the case is remanded to the district court for further proceedings.

WATSON, J., dissents. See State v. Booker, 385 So.2d 1186. LEMMON, J., concurs and assigns reasons.

1 .Judges Schott, Chehardy and Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Justices Calogero, Dennis, Watson and Lemmon.