Moore, J.
To constitute express malice, 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. (McCoy v. The State, 25 Texas, 33.) From the analysis of this definition, it will be seen that the killing may be with express malice, though there was, in fact, no intention or 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 to the fact of killing. ÜSTor, 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 design, springing from an inconsiderate impulse, passion, or excitement, however unjustifiable and unwarranted it may be. For in such 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 attrib[272]*272utable to the preconceived expressed malice. But when the design has its first inception and origin in an inflamed anti 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 eooliug 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, can not be murder in the first degree.
It is a familiar axiom that every one is presumed to understand the probable result of his act. And when an unlawful act is clearly shown to have been done, it is for the defendant to show facts which mitigate, excuse, or justify it, so that a reasonable doubt at least may arise on the entire evidence in the case as to his guilt. Hence, when the killing is proved, and it is not shown to have been done under sudden passion, induced by adequate cause; or under circumstances which excuse or justify it, such killing must be regarded as voluntary and designed, and therefore with the malice which the law imputes to such homicide. And since the mere rage, passion, or mental excitement (unless it has resulted in some character of insanity, to which we need not here advert) does not mitigate, much less excuse a voluntary homicide, however ungovernable one’s temper may be, or however great his excitement, if it result from his voluntary, though merely rash and inconsiderate conduct, he must be held to the same accountability for his acts done under such circumstances as those done in his calm and sober moments. It is therefore quite obvious, that the mere fact of being drunk, or mere mental excitement or ungovernable passion and rage, which may be engendered by drinking intoxicating liquors, will not mitigate the criminality of a voluntary killing below the grade of murder.
But while the law implies malice on proof of voluntary homicide, it does not impute express malice. This is an inference not of law, but a question of fact, consisting in intention dependent upon the state of the mind. And to warrant a con[273]*273viction of murder in the first degree, it must be proved like any other fact in the case, by such evidence as is reasonably sufficient to satisfy the jury of its existence.
The evidence by which this inward intent is to be shown consists of external circumstances, such as the acts or declarations of the party, preceding or nearly connected with the killing, manifesting the state and condition of his mind, and the nature and intent of his design. Thus, antecedent menacings, former grudges, deliberate compassings, and the like have always been regarded as facts strongly tending to prove the existence of express malice. But, as has been frequently held by this court, it does not follow, because the killing may be the result of the prompt and speedy execution of a hasty or immediate resolution, that it may not have been done with express malice. The law has no scales to measure the time in which a sedate, deliberate mind may reach a formed design to kill, or do some serious bodily injury, which may probably result in death. When such design is once formed, the haste with which it is put in execution in no way affects or modifies the character of the act, or the degree of guilt thereby incurred.
As the difference in the degrees of murder does not result from the length of time taken to form the design, or the speed with which it is executed, but upon the state and condition of the mind in which the design is formed, it is obvious that it will often be difficult in homicides, without antecedent explanatory facts showing their true character, to determine to which class the particular case under consideration belongs. It is always to be borne in mind, however, whatever difficulty there may be in establishing the fact that the killing was with express malice, still it is incumbent on the State to prove it, before the accused be properly convicted of murder in the first degree. This may be done by proof of the cool, calm and circumspect deportment and bearing of the party when the act is done, and immediately preceding and subsequent thereto ; his apparent freedom from passion or excitement; the absence of any obvious or known cause to disturb his mind, or arouse his [274]*274passions; the nature and character of the act done; the instrument used, as well as the manner in which the murder is committed; declarations indicating not only his state of mind, but also the purpose and intent with which he acts, and the motives by which he is actuated ; and all such other matters and things pertinent to the issue which may be suggested by the facts of the case. *
But if, on the other hand, there is nothing in the conduct and declarations of the party killing, or the attendant circumstances connected therewith, from which a sedate, deliberate mind is to be inferred when the design was formed to do the act from which death ensued, obviously the State will have failed to make out a case of murder in the first degree.
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Moore, J.
To constitute express malice, 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. (McCoy v. The State, 25 Texas, 33.) From the analysis of this definition, it will be seen that the killing may be with express malice, though there was, in fact, no intention or 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 to the fact of killing. ÜSTor, 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 design, springing from an inconsiderate impulse, passion, or excitement, however unjustifiable and unwarranted it may be. For in such 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 attrib[272]*272utable to the preconceived expressed malice. But when the design has its first inception and origin in an inflamed anti 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 eooliug 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, can not be murder in the first degree.
It is a familiar axiom that every one is presumed to understand the probable result of his act. And when an unlawful act is clearly shown to have been done, it is for the defendant to show facts which mitigate, excuse, or justify it, so that a reasonable doubt at least may arise on the entire evidence in the case as to his guilt. Hence, when the killing is proved, and it is not shown to have been done under sudden passion, induced by adequate cause; or under circumstances which excuse or justify it, such killing must be regarded as voluntary and designed, and therefore with the malice which the law imputes to such homicide. And since the mere rage, passion, or mental excitement (unless it has resulted in some character of insanity, to which we need not here advert) does not mitigate, much less excuse a voluntary homicide, however ungovernable one’s temper may be, or however great his excitement, if it result from his voluntary, though merely rash and inconsiderate conduct, he must be held to the same accountability for his acts done under such circumstances as those done in his calm and sober moments. It is therefore quite obvious, that the mere fact of being drunk, or mere mental excitement or ungovernable passion and rage, which may be engendered by drinking intoxicating liquors, will not mitigate the criminality of a voluntary killing below the grade of murder.
But while the law implies malice on proof of voluntary homicide, it does not impute express malice. This is an inference not of law, but a question of fact, consisting in intention dependent upon the state of the mind. And to warrant a con[273]*273viction of murder in the first degree, it must be proved like any other fact in the case, by such evidence as is reasonably sufficient to satisfy the jury of its existence.
The evidence by which this inward intent is to be shown consists of external circumstances, such as the acts or declarations of the party, preceding or nearly connected with the killing, manifesting the state and condition of his mind, and the nature and intent of his design. Thus, antecedent menacings, former grudges, deliberate compassings, and the like have always been regarded as facts strongly tending to prove the existence of express malice. But, as has been frequently held by this court, it does not follow, because the killing may be the result of the prompt and speedy execution of a hasty or immediate resolution, that it may not have been done with express malice. The law has no scales to measure the time in which a sedate, deliberate mind may reach a formed design to kill, or do some serious bodily injury, which may probably result in death. When such design is once formed, the haste with which it is put in execution in no way affects or modifies the character of the act, or the degree of guilt thereby incurred.
As the difference in the degrees of murder does not result from the length of time taken to form the design, or the speed with which it is executed, but upon the state and condition of the mind in which the design is formed, it is obvious that it will often be difficult in homicides, without antecedent explanatory facts showing their true character, to determine to which class the particular case under consideration belongs. It is always to be borne in mind, however, whatever difficulty there may be in establishing the fact that the killing was with express malice, still it is incumbent on the State to prove it, before the accused be properly convicted of murder in the first degree. This may be done by proof of the cool, calm and circumspect deportment and bearing of the party when the act is done, and immediately preceding and subsequent thereto ; his apparent freedom from passion or excitement; the absence of any obvious or known cause to disturb his mind, or arouse his [274]*274passions; the nature and character of the act done; the instrument used, as well as the manner in which the murder is committed; declarations indicating not only his state of mind, but also the purpose and intent with which he acts, and the motives by which he is actuated ; and all such other matters and things pertinent to the issue which may be suggested by the facts of the case. *
But if, on the other hand, there is nothing in the conduct and declarations of the party killing, or the attendant circumstances connected therewith, from which a sedate, deliberate mind is to be inferred when the design was formed to do the act from which death ensued, obviously the State will have failed to make out a case of murder in the first degree. And though, in the absence of explanatory circumstances, it might be inferred that the killing was done with express malice, if it is clearly shown that, owing to some pre-existing cause, the party killing was wholly incapacitated to form a design with a sedate, deliberate mind when the design to do the act from which death has ensued was formed and executed, whatever may have been the cause from which such want of capacity originated, it is equally clear he can not be guilty of murder in this degree.
Whether the killing was done under the one state of fact or the other, is a question for the jury, and should be submitted to their consideration under instructions presenting the alternative phases presented by the testimony, from which the proper conclusion should be deduced.
An application of these general principles to the charge given in this case by the court to the jury, shows that it may have operated prejudicially to appellant.' It presents a very elaborate, and, in the main, correct exposition of the law held applicable to murder in the first degree, as laid down in the former decisions of this court. And, without charging upon the weight of evidence, properly illustrates, with evident reference to the testimony in the case, facts and circumstances tending to prove that the killing was with express malice. But there was an utter failure to present, with equal fullness and [275]*275elaboration, the law applicable to murder in the second degree, or to advert to the facts in evidence tending to show the absence of a sedate, deliberate mind ; such, for instance, as the character of the weapons used ; the circumstances under and purpose for which they had been procured ; the almost immediate combat in which the appellant and his friends had been engaged with the friends and associates of the deceased; the possibility that he was in the pursuit of these parties when he encountered the deceased, and, notwithstanding the warning given him to the contrary, that he may, in his blinded passion, have supposed the decedent to be one of them ; the effect of this combat and the severe blow on the head given appellant but a little while before, are especially calculated to arouse anger and to excite to rash and intemperate acts of violence and strife, and other matters in the statement of facts, to which we need not advert.
It is not proper, as has often been said by this court, for the judge, on the trial of a criminal case, to announce merely the general principles of law defining the offense charged, but he ought also to instruct the jury on the law applicable to the particular case before them, as developed by the facts proved. He should anticipate probable conclusions on the facts, and adapt his instructions to such deductions from them as may be properly made by the jury, which would warrant the defendant’s acquittal or conviction. (Marshall v. The State, 40 Texas, 200.) In this particular the charge of the court is clearly deficient, and the judgment must, on this account, be reversed.
As it is unnecessary for the disposal of the case to pass upon the other questions discussed by counsel, upon some of which it- is not certain the opinions of all the members of the court would be in harmony, we refrain from any comments upon them.
The judgment is reversed and the cause remanded.
Reversed and remanded.