Smith v. State, 30559
| Decision Date | 18 March 1959 |
| Docket Number | No. 30559,30559 |
| Citation | 323 S.W.2d 443,168 Tex.Crim. 102 |
| Parties | Jesse Doffies SMITH, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Herbert J. Coleman, Jack L. Penman, Houston, for appellant.
Dan Walton, Dist. Atty., Thomas D. White, Benjamin Woodall and Charles C. Castles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., of Austin, for the State.
The offense is murder; the punishment, death.
The State's evidence conclusively shows, and the appellant in his testimony admits, that he went into a supermarket operated by two young Chinese men for the purpose of robbing them. Appellant testified that he bought the pistol which he used for the purpose of robbing some one and that earlier on the night of the homicide he went in the store, 'looked it over', left, changed clothes and returned. The State's witnesses testified that the appellant put some groceries in a basket, approached the checker's stand which was manned by the deceased; that when the deceased told him the total of his bill the appellant said, ; that when the deceased said, 'Let's not kid any more,' the appellant struck him in the face with his hand, and when the deceased staggered back the appellant shot at him four times, one of which proved fatal.
The only questions presented for review by appellant's who earnest counsel are the failure of the court to grant certain requested charges relating to abandonment of the criminal enterprise and murder without malice.
The first such charge told the jury to acquit the appellant of murder with malice and find him guilty of murder without malice if they found that at the time of the shooting the appellant had abandoned his intent to commit the offense of robbery. They predicate the request for such a charge on certain portions of the appellant's testimony. We must consider such testimony as a whole.
Viewed in the light most favorable to the appellant, his version of the matter was that after he pointed his pistol at the deceased and demanded the money from the cash register, the deceased made a motion as if 'to get something' and the appellant pushed him back, and as he made another effort to get 'whatever he was going to get,' the appellant shot at him to prevent him from doing so and so that he (the appellant) might escape.
A rather similar fact situation was before this Court in Leza v. State, ...
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