Smith v. State

• Decision Date: 21 December 1949
• Docket Number: No. 24565,24565
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 846

225 S.W.2d 846

154 Tex.Crim. 234

SMITH v. STATE.

No. 24565.

Court of Criminal Appeals of Texas.

Dec. 21, 1949.

Rehearing Denied Jan. 25, 1950.

Nelson J. Munger, Houston, King C. Haynie (on appeal only), Houston, for appellant.

A. C. Winborn, Criminal District Attorney Houston, E. T. Branch, Asst. Crim. Dist. Atty., Houston, George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the killing of Leslie D. Gibbins with malice, and upon conviction, he was assessed the penalty of death.

The proof shows that appellant and a companion prepared themselves for a robbery of the deceased who was a bus driver; and appellant, being possessed of a pistol, these two men boarded this bus at nighttime. Appellant's companion announced that 'this is a stick up.' Appellant then presented the pistol at the deceased, who gave the companion some money from his shirt. He was immediately shot by appellant while doing something with his money changer, and Mr. Gibbins (the deceased) soon died from this bullet wound in his body. He endeavored to say something to those who soon discovered him, but he was unable to speak and was dead when the ambulance arrived.

Appellant made a written statement relative to the matter, to the introduction of which no objection was made. He also told the officers where the pistol would be found where he had hidden the same, and at such place they found a pistol from which the State showed that the bullet in deceased's body was fired. Appellant also took the stand and told practically the same story as set forth in his confession. He was positively identified with his companion as seen leaving this bus immediately after the witness heard a shot. Appellant's written statement reads in part as follows:

'Blackman told me to hold the gun, that he could take the money faster than me. I told him all right, I would hold the gun. About this time the bus came around the corner and stopped. It was headed toward town on Nance. The bus driver stopped when he got even with us. He opened the door and we boarded the bus. Blackman was in front of me. After we got on the bus Blackman stepped to one side and told the bus driver it was a stickup. By this time I had the gun in my hand and drawn on the bus driver. The bus driver reached in his shirt and handed Blackman some money. Blackman made a move like he was going to get the money changer. At this time my pistol went off. At this time Blackman told me to come on and lets go, I think you have done shot him.'

There is nothing said in the statement about an accidental shooting. However, in appellant's testimony on the witness stand he says that when Gibbins leaned forward toward the money changer that the confederate (Blackmon) bumped appellant's arm and the pistol was accidentally discharged and the deceased was shot. From appellant's testimony we quote:

'You ask me to stand up before the Jury and show them how I held this gun when I stepped on that bus and when Blackmon told the bus driver it was a stick-up. I held the gun like this (Defendant demonstrates before the Jury how he held the gun.) At that time Blackmon was standing in front of the bus driver and a little to the left of where I was standing, and when Blackmon reached for the money changer and got something out of it, he came back with his arm like this (Defendant indicates to Jury) and bumped my arm and the gun went off.'

Appellant objected to the court's charge because same failed to instruct the jury that if, this gun was accidentally discharged, the defendant was entitled to an acquittal. Such a charge was refused by the trial court,...