State v. Kye

46 La. Ann. 424

Opinion

The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for having wilfully and feloniously shot into a dwelling house in violation of the statute denouncing as an offence the shooting at a dwelling house.

The jury returned a verdict of guilty as charged.

The defendant moved for a new trial on the ground that the indictment charged the defendant with shooting into a dwelling house, and not with shooting at a dwelling house.

The court granted the new trial.

The district attorney excepted to the ruling, and from- the judgment granting a new trial the State prosecutes this appeal.

The trial judge incorporated the. statement in the bill of exception reserved; that the evidence showed that the defendant and others had a difficulty; that the shots were fired at indivduals in the room in a dwelling house, and that they were not fired at the house or into the house.

The court did not decide that the bill of indictment was illegal, but granted a new trial.

The court states the shooting was in the house at a person, and not a shooting at the house or into a house.

The question propounded for our determination is:

The defendant being charged, as before stated, can he be sentenced for having shot at some one in a dwelling?

There was a shooting at persons; not a shooting at a dwelling house, a different crime from that denounced by the statute under which the indictment was framed.

In shooting at a dwelling house the effect is directed toward the dwelling, and the inference, unavoidable, is that the person shooting is not in the house.

In shooting at a person in a room of the house the environment can no longer be the same, nor is the object directed toward the. house in the sense of the statute.

Shooting by one in a dwelling may be directed toward some one away from the house — in the road or street, for instance.

He would not thereby violate Sec. 8 of Act of 1870 any more than he does violate it in shooting while in the dwelling a person who is also in the same dwelling.

The proof of shooting in a dwelling can not be made the equivalent of shooting at a dwelling.

They are distinct acts not embraced in one statute, but denounced in different statutes as distinct crimes.

The ruling is correct.

Judgment affirmed.