—There is but a single question .to determine : was the killing done upon express or implied malice? If the former, the offense is capital and not bailable; if the latter, under our constitution, the prisoner is of right entitled to his discharge upon sufficient sureties.
The distinction between express and implied malice has been so thoroughly discussed in the exhaustive opinion of Judge Egberts, in McCoy v. The State, 25 Tex., 33, and Williams, Ake et al., Austin term, 1867, [Ake v. The State, 30 Tex., 466,] that we deem it unnecessary to renew the discussion.
The applicant, mounted" on a horse, approached the .deceased and several others who were herding beeves on the prairie. It appears that the father of applicant had authorized Andrew Jones, a brother of the deceased, to take up two beeves and dispose of them in satisfaction of a debt. Two beeves had been thus selected and placed in the herd. The defendant insisted that one of the beeves was a work-ox, and should be turned out of the drove. The brother of deceased replied, that he “ did not believe ” it was a *574work-steer, whereupon defendant called him d-d liar. Andrew Jones, the brother, unarmed and in his shirt' sleeves, was in the act of dismounting when the defendant fired upon him, though the stronger belief is that the prisoner fired simultaneously with the opprobrious epithet applied.
The deceased, seeing the danger of his brother, started towards the defendant, with hands uplifted, in an imploring attitude. He was without arms. Upon reaching a distance of some three or four feet from the defendant he' fired the fatal shot, and then another at his brother.
These are the material facts. There is not the slightest evidence that the deceased or his brother intended to assault the defendant or do him an injury. From aught that appears in the record, the killing was without the shadow of provocation, excuse, or extenuating circumstance. We need resort to no presumptions here. It is evident the killing was the result of a “ formed design ” in the mind of the prisoner, thus bringing the case within the rule laid ’down in the above-cited cases, to establish the existence of express malice at the time of the homicide.
It follows that the judgment of the district court ought not to be disturbed. It is therefore
Affirmed.