Winkler, J.
The defendant was indicted, tried, and convicted, in the district court of Burnet county, for the murder of Mack Peppers, alleged to have been committed December 27, 1876. He was convicted of murder in the first degree, and the penalty of death was assessed against him. A motion for a new trial was made and overruled,, and an appeal taken.
We have not been favored by either a brief or oral argument on behalf of the appellant. The only statement in-the record which calls in question the correctness of the conviction arises upon the motion for a new trial, which is based upon the following grounds, as set out in the motion:
“ 1st. Because the verdict of guilty of murder in the first degree, as brought in by the jury upon the trial of said cause, is contrary to, and not supported by, the law and the evidence offered in said trial and submitted to the consideration of the jury.
“2d. Because the court erred in not embodying in the charge that a defendant in a criminal charge is presumed to be innocent until his guilt is established by legal evidence ; thereby omitting to charge all the law applicable to the case on trial.”
This motion embraces two propositions :.
1st. Does the evidence under the law support the conviction of murder in the first degree ?
2d. Does omission to charge the legal presumption of innocence constitute an error of sufficient importance to require a reversal of the judgment, taken alone or in connection with any other error apparent in the record ?
The most material question for our consideration is, Does the evidence, as set out in the transcript, constitute murder with express malice? There is no pretense that the homicide was committed by poison or starving, or by torture, or in the perpetration, or in the attempt at the perpetration, of either of the crimes of arson, rape, robbery, or burglary. The only other kind of homicide. known to the law, which will constitute murder in the first degree, is murder committed with express malice.
The precise meaning of the term express malice is not laid down in the Code, yet its legal significance has been well defined and understood since the decision of McCoy v. The State, 25 Texas, 33, decided in 1860, and followed ever since, but more especially in the case of Farrer v. The State, 42 Texas, 265. The cases of McCoy and Farrer were both carefully considered, and in both cases it was necessary for the court to decide what the law required to constitute murder of the first degree, and to determine and give effect to the term express malice; and this is the question here to be considered, and applied to the present case.
We quote from the opinion of the court in Farrer v. The State, as appropriate and to the point:
“ To .constitute express malice the killing must result from an act done in pursuance of a formed design of a sedate, deliberate mind to kill the deceased, or to inflict upon him by an unlawful act some serious bodily harm, which might probably end in depriving him of life.” Citing McCoy v. The State. From the analysis of this definition it will be seen that” the killing may be with express malice, though there was in fact no design to take the life of the deceased. It is the act by which one doth kill to which the formed design must refer, and not the fact of killing. Nor, on the other hand, does the mere design to kill, without lawful excuse or justification, however fully formed and firmly fixed in the mind, constitute, of itself, express malice. For the design must originate in, or result from, a sedate, deliberate mind.
“ These words, indicating the state of the mind when the design is formed, are not, however, to be understood in an absolute and unconditional sense; for it would be almost impossible that any one, not altogether devoid of human sensibilities, and reduced to the level of the brute, could deliberately design to take the life of a fellow-being with an absolutely calm and unruffled mind, without any character of mental excitement whatever. Still, they certainly import that the mind is sufficiently composed, calm, and undisturbed to admit of reflection and consideration on the design—that it is in a condition to comprehend and understand the nature and character of the act designed, and its probable consequences and results.
“ The act must not result from a mere sudden, rash, and immediate danger, springing from an inconsiderate impulse, passion, or excitement, however unjustifiable and unwar ranted it may be. For, in such a case, the sedate, deliberate mind is wanting, and without it there can be no express malice.
“To guard against all danger of misconception, we add we do not intend to be understood—if the design is formed with a sedate, deliberate mind, the fact of such design being executed while the slayer is under the influence of rage, passion, or other character of excitement—the killing may not be attributable to the preconceived express malice. But when the design has its first inception and origin in an inflamed and excited mind, incapable of such sedate, deliberate action as is compatible with express malice, and such design is carried into immediate effect before there has been cooling time for passion, or for the excitement to abate, and the mental equilibrium to be restored, the killing, under such circumstances, no matter how such passion or excitement may have been induced or originated, cannot be murder in the first degree.”
Do the facts and circumstances surrounding the case under consideration, preceding, at the time of, and subsequent to the homicide, as shown by the evidence on the trial, discover that any act done against the person of the deceased, likely to result in death, or bodily injury endangering life, was the result of a deliberate design in the mind of the accused, formed after calm reflection and deliberation, as the moving cause of the act committed which resulted in the death of the deceased ?
If so, upon the authority" cited above, the killing was upon express malice, and murder in the first degree, and the judgment, unless otherwise erroneous, must be affirmed. If the circumstances developed by the evidence do not show that the act which resulted in the death was the result of an act done in pursuance of a formed design of a sedate, deliberate mind to kill the deceased, or to inflict, upon him by an unlawful act some serious bodily harm, which might probably end in depriving him of life, the killing was not murder in the first degree, and the judgment must be reversed.
Now, if the killing is to be referred to the occurrence spoken of by the witness, the brother of the deceased, which occurred about a year before the killing, it would be murder on express malice and in the first degree. But giving the testimony of this witness its full force, notwithstanding his youth and the relationship he bore to the deceased, when taken in connection with the other testimony, the evidence becomes very weak and inconclusive upon which to take life.
The meeting of the parties on the day of the final rencounter, so far as the evidence discloses, was purely accidental. There is no evidence that the accused had made any preparation for a hostile meeting, or that he anticipated anything of the kind. Not only the accused, but the persons with whom he was in company, were all unarmed, and, according to the testimony of the witness Allison, even the stick carried across the river by the accused was picked up by him in the boat when he started over the river, and this not until after the two parties had met, and after the deceased had crossed the river, whilst the deceased and the one in company with him each had a double-barreled shot-gun. When the parties first met on the bank of the river, it was the deceased, and not the accused, who, so far at least as words were concerned, manifested a disposition to provoke a difficulty. The deceased first spoke to the defendant, and asked him, “ Is that you,Lee?” The accused answered, “ Yes,” which is the only word, agreeably to the testimony, spoken by the accused to the deceased on that day; and then he was told to come up, as one witness says, “ and I will settle with you for what you have said. ’ ’ According to the other he was told, “ Come up here, and I will run you again,” or something-like that; and when he failed, and then by his acts declined a contest, he was told by the deceased that he would settle with him when they got across the river.
The deceased crossed the river in advance of the accused, and when the boat, which subsequently conveyed the defendant across the river, was nearing the bank, the deceased, having laid his gun down on some rocks near by, stood near the landing, bantering the defendant to come ashore that the contest might commence; and, on the accused leaving the boat, he was rudely accosted and either pushed or struck by the deceased, which was returned by a blow from the accused with the stick carried by him across the river, followed by the deceased picking up a stick and with it returning the blow, when, the stick failing the deceased, he started in the direction of his gun, saying, “ Give me my gun ; I will kill the d—d rascal.”
From this statement of the meeting of the parties, and judging as best we can of the motives by which they were actuated on that occasion, as shown by their words and actions, the killing is referable to a sudden difficulty provoked and brought about by the deceased, rather than that the accused was prompted to action by a former difficulty, or upon a plan deliberated upon and formed in the mind of the accused to take the life of the deceased, or to then do him any serious bodily harm. If the conduct of the accused was caused by that of the deceased in provoking a difficulty, and, after the parties had come to blows, if the subsequent acts of the accused, which resulted in the death of the deceased, were caused by passion or rage engendered by the conflict, or by fear on account of his condition at the time—and either was the motive which prompted the action —it was not a killing on express malice, and not murder in the first degree.
There was error in refusing a new trial on the two grounds set out in the motion, and for this error the judgment is reversed and the cause remanded.
Reversed and remanded.