State v. Plumlee

• Decision Date: 29 May 1933
• Docket Number: 32316
• Citation: 177 La. 687,149 So. 425
• Court: Louisiana Supreme Court
• Parties: STATE v. PLUMLEE

149 So. 425

177 La. 687

STATE v. PLUMLEE

No. 32316

Supreme Court of Louisiana

May 29, 1933

Rehearing Denied July 7, 1933

Appeal from Fourteenth Judicial District Court, Parish of Allen Jerry Cline, Judge.

Randolph Plumlee was convicted of manslaughter, and he appeals.

Affirmed.

Williams & Blackshear, of Oaksdale, for appellant.

Gaston L. Porterie, Atty. Gen., James O'Connor, Asst. Atty Gen., and John J. Robira, Dist. Atty., and Sam H. Jones, Asst. Dist. Atty., both of Lake Charles (James O'Niell, Asst. Atty. Gen., of counsel), for the State.

ODOM, Justice. LAND, J., dissents and hands down reasons. ROGERS, J., dissents from the ruling on bill of exception No. 2.

OPINION

ODOM, Justice.

The defendant was indicted for murder, convicted of manslaughter and sentenced to hard labor for a term of not less than two nor more than seven years. He appealed and sets out the errors of which he complains in six bills of exception.

(1) Bill No. 1 refers to an alleged error in the drawing of the jury. At the opening of the term of court, there were thirty names in the jury box. The first case called was triable by a jury of five. The jury for that case was completed, the case tried, and, while the jury was out deliberating, the case against the defendant was called. All the remaining names in the jury box were drawn out, the regular panel was exhausted, and the court ordered the summoning of fifty tales jurors. In the meantime it was discovered that only twenty-two names had been drawn from the regular box, which added to the five sworn to try the first case made only twenty-seven in all, three less than the number which were in the box when it was opened. On investigation it was found that the sheriff, in calling jurors for the trial of the first case, had drawn from the box eight names, three of the jurors drawn being rejected. When the jury of five was completed for the trial of the first case, the sheriff, instead of placing the names of the three jurors not accepted back into the box as he should have done, laid the three on the table beside the box along with the five. When this was discovered, the court ordered the three names put back into the box and the drawing was proceeded with as if they had been placed back in the box by the sheriff at the completion of the first jury. The trial judge says in his per curiam that the irregularity was not due to any fraud or ill practice but was purely unintentional and due to an oversight which resulted in no hurt or injury to defendant.

We concur in this view.

"No judgment shall be set aside, or a new trial granted by any appellate court of this State, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right." Code of Criminal Procedure, art. 557.

We find no error in the court's ruling on this bill.

(2) Bill No. 2 was reserved to the refusal of the trial judge to give certain special charges. The judge says in his per curiam that he refused to give the charges for the reason that some of them were unauthorized by law and that his general charge sufficiently and correctly stated the law applicable to the facts disclosed in the trial.

In this connection it is necessary to state the facts and circumstances leading up to and connected with the homicide for which the defendant was prosecuted.

Deceased was killed by the discharge of a trap or spring gun set by defendant in his barn, in which was a henroost, the defendant at the time being nearly a mile away. The barn is situated some seventy-five yards from defendant's residence and is used in connection therewith as an outhouse. It appears that none of the members of defendant's family were in the residence at the time of the homicide and, as said, he was nearly a mile away. The barn, it appears, is of considerable length and has an open passageway running from one end to the other with stalls on each side. One of these stalls was used as a roosting place for defendant's chickens. This stall opens out into the main passageway but was not inclosed or shut off from it by gates, doors, or any other obstacle, so that one could pass from the long passageway into the stall to where the chickens roosted without having to remove or displace any structure. On the other side of the passageway, and directly opposite the one occupied by the chickens as a roosting place, is another stall which is inclosed and apparently used as a bin. A shotgun was set by defendant in this bin, the muzzle or barrel of the gun projecting through a hole in the front wall pointing directly toward the henroost. A wire was attached in some way to the gun and stretched across the passageway which separates the bin from the roost, the arrangement being such that a disturbance of the wire caused the gun to be discharged. The body of this deceased was found either in the passageway or in the stall where the chickens were with the entire charge of the gun lodged in his head. The supposition is that he came in contact with the wire either in the hallway or as he was attempting to enter the henroost.

The long passageway through the barn was inclosed at one end by gates which were probably closed and held together by a latch at the time deceased entered the barn. The probabilities are that deceased opened these gates when he entered the barn, but it is stated that they were not high and that he could have entered by climbing over them. The other end of the passageway was inclosed by wire, which was not disturbed.

In order to reach the henroost and the place where the gun was set, the deceased had to enter the barn through the gate and walk down the open space or hallway, the exact distance not being disclosed. The gun was not set at the entrance to the barn but down the passageway at a place opposite the henroost. We quote the following statement from the brief filed by counsel for defendant:

"The stall or place inside of which his chickens were kept was inside of the barn or stable, and inside of a stall in that barn or stable. In other words, in order to reach the place where the trap gun was set in his place, this man (the deceased) had to break and enter his barn or stable and then enter the particular stall in which the chickens were kept."

It is shown further that at the time of the homicide, there were only eleven chickens in the stall, and it is conceded that these were of no considerable value.

In the brief filed by defendant's counsel they state further:

"Randolph Plumlee (the defendant) is a farmer living north of Oakdale. At first he had a farm several miles north of Oakdale in a region inhabited by people who are called 'red bones'. He suffered from having his property stolen every day. He then moved down closer to Oakdale to another farm and the stealing continued until he had left only eleven chickens out of eighty-five. His hogs were all stolen; to cap the climax his yearling beef was killed and slaughtered at his back gate."

(3) The admitted purpose and intent of defendant in setting the trap or spring gun was to protect his property by killing the thief, and his main defense is that the homicide which resulted is excusable under the facts and circumstances disclosed.

As a basis or foundation for this defense, his counsel prepared and submitted the following special charges which the trial judge was asked to give as the law applicable to the case. These charges were refused and this bill was reserved.

Special charge No. 1: "The breaking and entering of a barn or chicken house belonging to accused inside of his yard or near his residence, being part of his premises, in the night time for the purpose of stealing his property, is felony."

Special charge No. 2: "The unlatching of a gate to a barn or the lifting of a latch or the unlocking of a wire fastening or pushing open of a door which had been shut, constitutes breaking and entering, particularly if done in the night time."

Special charge No. 3: "A man in his own house or on his own premises that is, in the out houses, barn or chicken house, forming part of his premises, in order to prevent a felony, has a right to use force and to kill the person breaking and entering, if necessary."

Special charge No. 6: "Where it is shown that the property and goods of the defendant had been repeatedly stolen and to the extent of impoverishing him, and he had appealed in vain to the officers for protection, and the series of thefts had culminated when his cattle were stolen at his own gate, and he believed and has reason to believe that he and his family were in constant danger, the setting by him of a trap gun inside a locked building for the purpose of protecting his goods from further theft, does not constitute murder if a person committing felony is killed while breaking and entering said building."

As purely abstract propositions, numbers 1 and 2 correctly state the law. The barn and henroost is an outhouse, and if deceased broke and entered it at night, he was guilty of a felony under Revised Statutes, § 852, as amended by Act No. 15 of 1912. Breaking as an element of burglary may consist of merely opening a door, though unlocked, or the removal or displacement of any structure which obstructs free passage. These charges were properly refused because not pertinent or relevant to the issue involved under the facts disclosed, as ...