Henry Duebbe, jr. (the appellant), Christian Westerfeld, and Louisa Duebbe were indicted,'in the district court of Austin county, for the murder of Heinrich Duebbe, sr. The defendant Henry Duebbe, jr., was found guilty of murder in the first degree,, and his punishment assessed at death; Christian Westerfeld was found guilty of murder in the second degree, and his punishment assessed at fifteen years in the penitentiary;; and the other defendant, Louisa Duebbe, was found not guilty. The defendant Henry Duebbe filed a motion for a new trial, which was overruled; he then gave notice of an appeal, in open court, to the supreme court, and the case was sent from the supreme court to this court.
The defendant has made the following assignment of errors:
“ 1st. The court erred in overruling defendant’s motion for new trial.
“ 2d. The district judge erred in that part of his charge-to the jury wherein he instructed the jury that 6 the law regards the killing as done upon express malice if one-beats another in a cruel or an unusual manner so that he-dies therefrom; though he did not intend the death, still such cruel and unusual beating, if death ensues, is pronounced murder upon express malice.’
“ 3d. And for other errors in the charge of the court-on the subject of express and implied malice.”
The question for us to decide in this case is whether or *165not the killing was with express malice. Our Code provides that “ all murder committed by poison, starving, torture, or with express malice, or committed in the perpetration, or in the attempt at perpetration, of arson, rape, robbery, or burglary, is murder in the first degree ; and all murder not of the first degree is murder of the second degree.” “ Express malice exists where one person kills another with a sedate and deliberate mind and formed design. Such formed ■design may be evidenced by external circumstances discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and conceited schemes to do the party some bodily harm.” 4 Bl. Com. 198.
This description indicates, 1st, the state of the mind at the time of the killing; 2d, the design formed; and, 3d, the character of proof by which such formed design is to be discovered.
The person must be of a sedate and deliberate mind. He must be self-possessed sufficiently to comprehend and contemplate the consequences of his acts. His acts must not be the result of a sudden, rash, inconsiderate impulse or passion.
The design must be to kill the deceased, or to do him some serious bodily injury which resulted in his death; and the malice must be directed to the person actually killed.
Hawkins says “ that is most properly called express malice when murder is occasioned through an express purpose to do some personal injury to him who is slain in particular.” 1 Hawk. P. C. 96.
This design is not confined to an intention to take away the life of the deceased, but includes an intent to do any unlawful injury which may probably end in depriving the party of his life. McCoy v. The State, 25 Texas, 39; Roscoe, 707 ; 2 Starkie, 711.
Malice is implied from any deliberate, cruel act committed *166by one person against another, however sudden—as where a man kills suddenly without any, or without a considerable, provocation, and with a deadly weapon—it being a maxim, based on ordinary experience, that no person, unless under the influence of malice, would be guilty of such an act upon a slight, or no apparent, cause. If the defendant designed to kill the deceased, or to inflict upon him, by any unlawful means, any serious bodily injury which might probably end in his death, the law does not and cannot define any precise time as necessary for deliberation. The operation of the mind in deliberating may take place in the shortest interval—• even the moment before the act, as well as months before —and the deliberate intention of the mind is manifested by external circumstances.
Justice Moore, in his able opinion in the case of Farrer v. The State, 42 Texas, 271, uses the following language: “ 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.” The killing *167may be with express malice, though there was no intention to take the life of the deceased.
When a homicide is committed, antecedent menaces, former grudges, deliberate compassings, and the facts and circumstances attending the killing are important, as being facts from which the actual state of the mind may be inferred at the time of the killing. These external circumstances attending the killing may transpire at the time of the killing as well as before that time. A killing may be upon a sudden difficulty, and yet it may be attended with such circumstances of enormity, cruelty, deliberate malignity, and cool, calculating compassings as will be sufficient evidence to show that it was done with express malice. Familiar cases are given in illustration, as “ where a boy was tied to a horse’s tail and dragged till he was killed; where a master corrects his servant with an iron bar; where a schoolmaster stamps on his scholar’s belly.” 4 Bl. Com. 199. Antecedent, circumstances, and those that are contemporaneous with the killing, may conspire to lend to each other increased force in establishing this inference. Hill v. The Commonwealth, 2 Gratt. (Va.) 603. Acts and omissions, or other language of the prisoner, even after the mortal stroke or killing, may often be pertinent evidence, as tending to show express malice at the time of the killing. The Commonwealth v. Jones, 1 Leigh. (Va.) 670. In determining whether or not a homicide is murder in the first or second degree, we cite also the following authority: “The distinction in a case is often slight; and when a statutory line is to be followed it has been held that, when the damage intended was such as would probably result in death, it is murder in the first degree, even though death may have been but incidental to the offender’s purpose. In all cases of such outrageous hurt as to make death a natural consequence, we have a right to infer such an intent; but it is otherwise where *168the hurt was less serious and the presumption to kill less violent.” Whart. on Hom. 40.
Keeping in view these legal propositions, the jury, in our opinion, in applying the evidence to the law as given in charge by the court, were fully warranted in finding the appellant guilty of murder in the first degree. The evidences of express malice are not wanting in the immediate circumstances attending the homicide. The evidence in the record shows a reckless, unprovoked slaying of an aged father by the son, the latter egged on by an inhuman mother and wife. The instrument used, the manner of the murder, all point with unerring certainty to a design to kill or do serious bodily injury, formed most probably as the old man was being dragged from his own house by his son.
In this case the appellant had the full benefit of a charge on murder in the second degree and manslaughter. And by taking the whole charge together, and applying the facts in evidence to it, we believe the law of the case was fairly presented by the court to the jury, and that the second assignment of errors made by the appellant to the charge of the court is not well taken.
The judgment of the court below is, therefore, affirmed. Affirmed.