Ector, Presiding Judge.
The defendant was indicted in the district court of Milam county, charged with the murder of Willis Parker. On his application the venue was changed to the district court of Robertson county, where the defendant was convicted of murder in the second degree, and his [680]*680punishment assessed at five years’ confinement in the penitentiary.
The defendant made a motion for new trial, principally on the ground that the court erred in its instructions to the jury in each of the eighteen subdivisions of its charge, and because the verdict of the jury was contrary to the evidence. This motion was overruled.
The 1st error assigned is that the court erred in its definition of murder, and of express and implied malice. The court instructed the jury that ‘6 murder is defined by the statute as follows: Every person with a sound memory and discretion, who shall unlawfully kill any reasonable creature in being, within this state, with malice aforethought, either express or implied, shall be deemed guilty of murder.” The presiding judge, in the 14th paragraph of his charge to the jury, proceeds : “ Should you find that defendant killed Parker, and that he is not justified in doing so, then in the necessary defense of his person, or as an officer being violently resisted, and having just ground to fear danger to his own life, then you will proceed to your 3d inquiry—that is, whether the killing was with malice. Malice is either express or implied. All murder upon express malice is murder of the first degree. Murder of implied malice is of the second degree.
“15. The attorney for the state having announced to the jury that he did not claim that the killing in this cause was rip on express malice, you are charged only on the law of implied malice. You may infer malice from the willful and deliberate taking of human life by a person of sound mind, without provocation or without a considerable provocation. Every rational creature is presumed to contemplate and intend the natural and probable consequences of his deliberate acts.”
This portion of the charge is objected to because, 1st, it fails to define murder in the second degree; and, 2d, because [681]*681the court takes from the jury the consideration of murder with express malice, and confines them to murder with implied malice, without ever defining either. These objections are not well taken. No injustice was done to the defendant by the court telling the jury that he would not charge them upon express malice, as it was not claimed that the killing was done upon express malice.
In every indictment for murder the defendant therein is •charged with having killed the deceased with malice aforethought. Malice aforethought is either express or implied malice. About the most concise definition of these legal terms is given in 4 Blackstone, 198, et seq. “ Express malice is when one, with a sedate and deliberate mind and formed design, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. * * * Where no malice is expressed, in many cases the law will imply it. * * * And if a man kills another suddenly, without any, or without a considerable, provocation, the law implies malice; for no person, unless cf an abandoned heart, would be guilty of such an act upon slight or no apparent cause.”
To constitute a killing with 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. Farrer v. The State, 42 Texas, 271; MaCoy v. The State, 25 Texas, 33. This sedate and deliberate condition of the mind, like every other fact, may be proved by any circumstance which will satisfy the minds of the jury beyond a reasonable doubt. When the killing of any person has taken place without any cause which will in law justify, excuse, or extenuate the homicide, and it was not done with [682]*682a sedate and deliberate mind and formed design, the killing would be deemed to be with implied malice, for the law would imply the malice.
Applying these principles to the 1st error assigned, we believe that it is not well taken. We think that the charge on this point would have been much plainer to the jury if the definition of murder and of implied malice had been in more immediate connection with each other. A definition of murder is in the first part of the charge, and of malice in the 14th and 15th subdivisions of the same.
The 6th instruction given to the jury was clearly erroneous, when taken in connection with the evidence. It is as follows : “If you believe from the evidence that defendant killed Parker, he is not justified in so doing, and the killing was unlawful, unless, at the time, defendant was violently resisted, and had just grounds to fear danger to his own life from Parker, in executing the writ.” The defense relied on in this case was that, at the time of the killing, the accused had been specially deputized by the sheriff of Bell county to arrest Parker, and for whose arrest it is insisted that the defendant had a legal warrant; that, in executing the warrant of arrest, he was resisted by Parker,, and that, at the time he killed Parker, he had good grounds to believe he was in danger of losing his life or suffering serious bodily harm from Parker. The law says that an officer or other person executing an order of arrest is required to use such force as is necessary in overcoming resistance to the execution of such order, “ but he shall not take the life of the person resisting arrest unless he has just grounds to fear that his own life will be taken, or that he will suffer great bodily injury in the execution of the order.” This is the 9th restriction to Articles 2213 and 2214, Pasc. Dig.
The 7th instruction given to the jury reads: “If you believe from the evidence that defendant was specially [683]*683appointed to execute the particular writ against Parker, and. no other, then it was the duty of the defendant to make known to Parker his purpose to arrest him, and also to-make known to Parker the capacity in which he was acting ; and, if he did not make known to Parker the capacity in which he was acting, Parker had the right to defend himself against an arrest; and, if the evidence shows that he was killed because of making a resistance, and that defendant had not made known to him the capacity in which he was. acting, such killing would be unlawful.”
Whilst it is the duty of an officer attempting to arrest to-make known his purpose and the capacity in which he acts, if, however, that purpose and capacity are known to the party when an arrest is attempted, and the arrest is otherwise lawful, submission to arrest is a duty, and resistance is unjustifiable. See The State v. Anderson, 1 Hill (S. C.), 343; Roscoe on Cr. Ev. 755; Tiner v. The State, 44 Texas, 131. In view of the testimony in this case we-think that the court should have qualified the 7th paragraph of its charge, as above indicated.
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Ector, Presiding Judge.
The defendant was indicted in the district court of Milam county, charged with the murder of Willis Parker. On his application the venue was changed to the district court of Robertson county, where the defendant was convicted of murder in the second degree, and his [680]*680punishment assessed at five years’ confinement in the penitentiary.
The defendant made a motion for new trial, principally on the ground that the court erred in its instructions to the jury in each of the eighteen subdivisions of its charge, and because the verdict of the jury was contrary to the evidence. This motion was overruled.
The 1st error assigned is that the court erred in its definition of murder, and of express and implied malice. The court instructed the jury that ‘6 murder is defined by the statute as follows: Every person with a sound memory and discretion, who shall unlawfully kill any reasonable creature in being, within this state, with malice aforethought, either express or implied, shall be deemed guilty of murder.” The presiding judge, in the 14th paragraph of his charge to the jury, proceeds : “ Should you find that defendant killed Parker, and that he is not justified in doing so, then in the necessary defense of his person, or as an officer being violently resisted, and having just ground to fear danger to his own life, then you will proceed to your 3d inquiry—that is, whether the killing was with malice. Malice is either express or implied. All murder upon express malice is murder of the first degree. Murder of implied malice is of the second degree.
“15. The attorney for the state having announced to the jury that he did not claim that the killing in this cause was rip on express malice, you are charged only on the law of implied malice. You may infer malice from the willful and deliberate taking of human life by a person of sound mind, without provocation or without a considerable provocation. Every rational creature is presumed to contemplate and intend the natural and probable consequences of his deliberate acts.”
This portion of the charge is objected to because, 1st, it fails to define murder in the second degree; and, 2d, because [681]*681the court takes from the jury the consideration of murder with express malice, and confines them to murder with implied malice, without ever defining either. These objections are not well taken. No injustice was done to the defendant by the court telling the jury that he would not charge them upon express malice, as it was not claimed that the killing was done upon express malice.
In every indictment for murder the defendant therein is •charged with having killed the deceased with malice aforethought. Malice aforethought is either express or implied malice. About the most concise definition of these legal terms is given in 4 Blackstone, 198, et seq. “ Express malice is when one, with a sedate and deliberate mind and formed design, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. * * * Where no malice is expressed, in many cases the law will imply it. * * * And if a man kills another suddenly, without any, or without a considerable, provocation, the law implies malice; for no person, unless cf an abandoned heart, would be guilty of such an act upon slight or no apparent cause.”
To constitute a killing with 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. Farrer v. The State, 42 Texas, 271; MaCoy v. The State, 25 Texas, 33. This sedate and deliberate condition of the mind, like every other fact, may be proved by any circumstance which will satisfy the minds of the jury beyond a reasonable doubt. When the killing of any person has taken place without any cause which will in law justify, excuse, or extenuate the homicide, and it was not done with [682]*682a sedate and deliberate mind and formed design, the killing would be deemed to be with implied malice, for the law would imply the malice.
Applying these principles to the 1st error assigned, we believe that it is not well taken. We think that the charge on this point would have been much plainer to the jury if the definition of murder and of implied malice had been in more immediate connection with each other. A definition of murder is in the first part of the charge, and of malice in the 14th and 15th subdivisions of the same.
The 6th instruction given to the jury was clearly erroneous, when taken in connection with the evidence. It is as follows : “If you believe from the evidence that defendant killed Parker, he is not justified in so doing, and the killing was unlawful, unless, at the time, defendant was violently resisted, and had just grounds to fear danger to his own life from Parker, in executing the writ.” The defense relied on in this case was that, at the time of the killing, the accused had been specially deputized by the sheriff of Bell county to arrest Parker, and for whose arrest it is insisted that the defendant had a legal warrant; that, in executing the warrant of arrest, he was resisted by Parker,, and that, at the time he killed Parker, he had good grounds to believe he was in danger of losing his life or suffering serious bodily harm from Parker. The law says that an officer or other person executing an order of arrest is required to use such force as is necessary in overcoming resistance to the execution of such order, “ but he shall not take the life of the person resisting arrest unless he has just grounds to fear that his own life will be taken, or that he will suffer great bodily injury in the execution of the order.” This is the 9th restriction to Articles 2213 and 2214, Pasc. Dig.
The 7th instruction given to the jury reads: “If you believe from the evidence that defendant was specially [683]*683appointed to execute the particular writ against Parker, and. no other, then it was the duty of the defendant to make known to Parker his purpose to arrest him, and also to-make known to Parker the capacity in which he was acting ; and, if he did not make known to Parker the capacity in which he was acting, Parker had the right to defend himself against an arrest; and, if the evidence shows that he was killed because of making a resistance, and that defendant had not made known to him the capacity in which he was. acting, such killing would be unlawful.”
Whilst it is the duty of an officer attempting to arrest to-make known his purpose and the capacity in which he acts, if, however, that purpose and capacity are known to the party when an arrest is attempted, and the arrest is otherwise lawful, submission to arrest is a duty, and resistance is unjustifiable. See The State v. Anderson, 1 Hill (S. C.), 343; Roscoe on Cr. Ev. 755; Tiner v. The State, 44 Texas, 131. In view of the testimony in this case we-think that the court should have qualified the 7th paragraph of its charge, as above indicated. The general character of the deceased, in prosecutions for murder, may be proved when it could serve to explain the actions of the deceased at the time of the killing, to show that defendant acted in self-defense; but the actions it would serve to-explain must first be proved before permitting proof of the character of the deceased. It was certainly not admissible for the defendant to prove the character of the deceased for honesty; for this would not serve to explain the actions of the deceased at the time he was killed, or to show that in the killing of the deceased the defendant was only acting in self-defense, and was under a reasonable fear of his life or-serious bodily injury from the deceased. 1 Whart. Am. Cr. Law, 641, 642; Horbach v. The State, 43 Texas, 242.
There is one other question discussed in the brief of defendant’s counsel which we feel it is proper that we [684]*684should notice in this opinion. The 1st error to which our ■attention is called is, “that it nowhere appears from the record that the defendant was ever arraigned, or allowed to •enter his plea.” Upon this question of arraignment, on an examination of the corrected copies of the record sent up by the clerks of Milam and Robertson counties, in answer to "the certiorari ordered, it appears that the judge’s docket of the Milam district court shows that, on the 23d day of November, 1876, the defendant was arraigned, and pleaded not guilty, and that the venue was then changed to Robertson county on the application of the defendant; but in the ■entry of the order for the change of venue the clerk failed to state in the order the fact of the arraignment of the prisoner, or that he pleaded not guilty.
Again, the corrected transcript sent up by the clerk of Robertson county shows that, on the 11th day of January, 1877, there was an entry made on the docket of the district judge, as follows, viz.: “By consent of defendant the order of arraignment and plea of not guilty, taken at last term of the district court of Milam county, and omitted to be entered of record, is now entered for then.” This order, like the one made in Milam county, was also omitted from the minutes of the court, and appears only on the judge’s docket. Such omissions should not occur.
The assistant attorney general, in his able brief filed in this case, insists that the defendant and his counsel are bound by the solemn admissions made to the court before which the defendant was tried, and that the entry on the judge’s docket is a part of the record; and we are cited by .him to the cases of Zimenes v. Zimenes, 43 Texas, 458; Rhodes v. White, 29 Texas, 188 ; and Miller v. Richardson, 38 Texas, 502.
We deem it unnecessary to determine whether it sufficiently appears from the record that the defendant has been arraigned, and pleaded not guilty, for this matter can be put [685]*685beyond question on another trial by complying with all the-formalities required on those points by the statute.
If the record shows that a defendant has pleaded not guilty in any case, but fails to show that an arraignment, has taken place, a judgment of conviction would not be-reversed by this court simply because the record was silent-on the subject of an arraignment. We would consider that, the arraignment had been waived. If the record, however, showed neither arraignment nor plea, then the judgment, would be set aside. Wm. Early v. The State, decided at. the Tyler term, 1876, of this court, and the authorities, there cited, ante p. 248.
The charge of the court, taken as a whole, gave undue-prominence to the idea that, before defendant could justify the killing, it must appear that defendant killed Parker to-save his own life, when he would have been justifiable in killing Parker if he had just ground to fear that he would suffer great bodily injury in the execution of the order of' arrest. It is true that the court, in a general way, in its 9th instruction, stated the law correctly. An erroneous. charge upon a particular point, and specially applied to the facts in evidence, is not cured by a correct instruction, couched in general terms.
Because the district court misdirected the jury as to the-, law, the judgment is reversed and the cause remanded.
Reversed and remanded.