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: 272
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272 FARRER v. THE STATE. [Term of
Opinion of the Court.
utable to the preconceived expressed malice. But when' the
design hlas 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,
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 un'der
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
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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/m1/280/: accessed August 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .