Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 271
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1875.] FARRER V. THE STATE. 271
Opinion of the Court.
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, il 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. 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 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
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/279/: accessed December 17, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .