
    Sol Johnson v. The State.
    No. 7767.
    Decided May 30, 1923.
    Murder — Sufficiency of the Evidence.
    Where, upon trial of murder, inflicting the death penalty, the evidence showed that the homicide was committed in the perpetration of robbery, the conviction is sustained. ,
    Appeal from the Criminal District Court of Bowie. Tried below be-the Honorable P. A. Turner.
    Appeal from a conviction of murder; penalty, death.
    The opinion states the case.
    No brief on file for appellant.
    
      R. G. Storey, Assistant Attorney General, for the State.
   HAWKINS, Judge.

Appellant is convicted for the murder of G. W. Landers, and his punishment assessed at death.

Deceased was running a country store situated near his residence. He was sixty-two years of age. His wife assisted him about the store. On the evening of the killing he had closed the store and gone to his residence. Mrs. Landers testified that he had just come in from the store and they were eating supper when a negro came and called him to go back-to the store. Her husband went with the negro and was followed by Mrs. Landers. When she reached the store only one negro was inside but another came in almost immediately. She recognized appellant as the one who came into the store after she reached there. Robert Johnson, the one who had called her husband, she had seen before but did not know his name. They made some small purchases of tobacco and candy and both of them left the store. In a few minutes Robert Johnson came back followed by appellant. Appellant again went out of the store but Robert Johnson remained. He stepped behind the counter and pulled the money drawer out immediately after appellant had left the store. Robert Johnson drew a pistol and told Mrs. Landers and her husband to throw up their hands. She ran out of the store and had gotten a few feet away when a pistol fired inside. She saw the bulk of a man to her left as she ran out of the door who hollowed to her to halt and fired at her. She testified that appellant was the one who fired at her. Mrs. Landers ran to a neighbor’s house near the store and immediately returned with him and Mr. Landers was found lying in the door. He had been shot and lived only a few minutes. Some stockings were missed from the store. Appellant and Robert Johnson about ten or eleven o’clock on the same night of the killing gave some stockings to two negro women. These stockings were turned over to the officers and were identified by Mrs. Landers as those missing from her store. About seventy dollars were taken from the cash drawer, and money was found scattered over the floor when she and the neighbor returned.

No bills of exception appear in the record, The evidence is amply sufficient to establish the identity of appellant both by the positive testimony of Mrs. Landers and by other circumstances in evidence. Both he and Robert Johnson were seen in the vicinity on the day preceding the killing and were going toward the store at the time. The killing occurred in the perpetration of robbery. It was the custom of Mr. Landers to go back to the store when requested to do so by customers after he had closed up in the evening and this ruse was adopted to gain entrance to the store and access to the money drawer. The unexpected appearance of Mrs. Landers upon the scene may have temporarily disconcerted appellant and his companion in their purpose but only momentarily, for upon retiring from the store after she came they immediately re-entered and the robbery and killing resulted as testified to by her. The jury was amply authorized not only in finding appellant guilty of the murder, but also in assessing the extreme penalty.

The judgment is therefore affirmed.

Affirmed.  