## Facts

- Smith and a companion agreed to rob a city bus at night; Smith carried a pistol.
- They boarded the bus driven by Leslie D. Gibbins.
- Smith’s companion announced a stickup and demanded money while Smith pointed the pistol at Gibbins.
- Gibbins handed over money (from his shirt) during the holdup.
- Moments later, while the robbery was still in progress, Smith’s pistol fired and struck Gibbins.
- Smith and his companion fled; Gibbins died from the gunshot wound.
- Smith gave officers a written statement admitting his role in the robbery and that his pistol went off; he also led officers to the hidden pistol, and the State tied the bullet to that weapon.
- Smith’s written statement did not describe the shooting as accidental, but at trial he testified the gun discharged when his companion bumped his arm as the companion reached toward the bus’s money changer.
- Smith requested a jury instruction that he should be acquitted if the jury found the gun discharged accidentally; the trial court refused and instead charged on murder in the course of robbery, including that a person may be punished for the felony actually committed even if done by mistake while committing another felony.
- The jury convicted Smith of murder and assessed the death penalty.

## Issues

1. Whether, when the State’s theory is that the killing occurred during the perpetration of a robbery, the defendant is entitled to a jury instruction authorizing acquittal if the jury believes the gun discharged accidentally.
2. Whether an unintentional discharge during an armed robbery negates murder liability when the homicide occurs as part of the robbery transaction.

## Decision

- The Texas Court of Criminal Appeals affirmed Smith’s conviction and death sentence.
- The court held the trial court properly refused Smith’s requested “accidental discharge equals acquittal” instruction.
- The court reasoned that a homicide committed in the perpetration of robbery constitutes murder under Texas law even if the defendant claims the shot was unintentional.

## Legal Principles

- A participant in an armed robbery is criminally responsible for a killing committed during the robbery; a separate intent to kill is not required when the homicide occurs in the course of the felony.
- A jury instruction that would require acquittal solely because the gun discharged unintentionally misstates the law when the evidence supports that the killing occurred during the perpetration of robbery.
- When the evidence shows the defendant intentionally engaged in a dangerous felony (such as robbery with a firearm) and a death results during that offense, the trial court may submit the case on felony-murder principles without an “accident” acquittal instruction.

## Conclusion

Because the evidence showed Smith intentionally participated in an armed robbery and the bus driver was shot and killed during that robbery, the Court of Criminal Appeals held that Smith’s claim of accidental discharge did not entitle him to a jury instruction directing acquittal on that basis, and it affirmed the conviction and death sentence.


Smith v. State, 225 S.W.2d 846 (1949)