¶1*1152 Bertrand De Blanc, Lafayette, for defendant-appellee.
¶2William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Research and Appeals Division, for plaintiff-appellant.
¶3Jack Yelverton, Executive Director, Louisiana District Attys' Assoc., Baton Rouge, John M. Mamoulides, President, Louisiana District Attys' Assoc., Abbott J. Reeves, Research and Appeals Division, Gretna, for amicus-curiae.
¶4PER CURIAM:
¶5The Grand Jury of Lafayette Parish indicted Charles Finley for aggravated rape, a capital offense in violation of LSA-R.S. 14:42. The defendant filed a motion to quash the indictment. The motion alleged that the statute no longer contained a criminal penalty, since the United States Supreme Court had invalidated the death penalty. See Roberts v. Louisiana,428 U.S. ___, 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
¶6The trial judge quashed the indictment. On application of the State under our supervisory jurisdiction, we granted writs to review the ruling. La., 335 So.2d 35 (1976).
¶7During the pendency of the case in this Court, the State filed a Bill of Information, charging the defendant with forcible rape, a violation of LSA-R.S. 14:43.1, based on the same incident as the quashed charge. After trial, the jury returned a verdict of not guilty.
¶8Forcible rape is a lesser included offense of aggravated rape. See LSA-C.Cr. P. Art. 814(A)(8). Inasmuch as the defendant has been adjudicated not guilty of the lesser included offense, the aggravated rape charge is no longer viable. See LSA-C. Cr.P. Arts. 591, 596; Ashe v. Swenson,397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Cain, La., 324 So.2d 830 (1975).
¶9For the reasons assigned, the writs granted herein are now vacated and recalled.