The indictment charges John E. Singleton, the appellant, with the murder of John Dwyer, in Bee county, on the 20th of July, 1875. At the ■June term, 1876, of the district court of Bee county the defendant in the indictment was put upon his trial, convicted by the jury of murder of the first degree, and his punishment assessed at death. There was a motion for a new trial for the following reasons :.
.“1st. Because the court, in its instructions to the jury, was mistaken as to the law applicable to this cause in this: that the court instructed the jury that express malice, in the commission of the offense of murder, could be inferred from the fact of the defendant having been found in possession of property which was shown to have belonged to, and been in the possession of, the deceased a short time before his death.
“2d. Because the court refused to give the instructions •asked by the defendant, which were proper and applicable to the facts of the case.
“ 3d. Because the indictment in this case is for the crime ■of murder committed with express malice, and the court, from its general instructions, gave the jury to understand that a convictiop could be had.under the indictment upon proof of a robbery having been committed at or after the killing; which instruction was contrary to law.
6 ‘ 4th. Because the verdict of the jury is contrary to the facts of this cause and the law as applicable thereto.
“ 5th. Because there is no evidence in this cause to sustain the verdict of the jury.”
The motion for a new trial was overruled. The counsel for the defendant has assigned the following errors :
“ 1st. The court, in its instruction to the jury, erred in
*506this: that the court instructed the jury that a conviction could be had under the indictment in this cause upon proof other than that of express malice.
“ 2d. The court erred in refusing the instructions asked by the defendant.
“ 3d. The court erred in refusing to grant a new trial.’*
The first assignment of error is not well taken. The indictment charges that the killing was done with express malice. The court, in its instructions to the jury, defined murder in the first and murder in the second degree, and express and implied malice. When an indictment charges that the killing was done with express malice (as it docs in this case), it is the duty of the presiding judge to deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case as shown from the testimony, and the jury, properly applying the law as given in the charge of the court to the testimony before them, can find the defendant guilty of murder in the first degree, or for any lesser degree of culpable homicide. The charge did properly submit to the jury to ascertain from the evidence whether the defendant was guilty of murder in the first or murder in the second degree. The jury were instructed that, if they had a reasonable doubt of the guilt of the defendant, they must acquit him. The charge of the court was certainly as favorable to the defendant as he was entitled to.
The counsel for the defendant asked the court to instruct the jury that “the defendant is indicted for the crime of murder, alleged to have been committed with express malice. Express malice is defined by law to be a cool and fixed intent to commit the murder, which intent has been expressed or declared in words by the party killing, at the time or immediately before the killing takes place; and unless the jury are satisfied, from the evidence now before them upon this trial, that the killing of the deceased was *507committed by the accused after having formed his intention, to kill, they cannot find the defendant guilty of murder as. charged in the indictment.” The charge asked by the counsel for the defendant, besides other objections, does not. give a correct definition of express malice, and the court-properly refused to give it. His definition of express malice was erroneous in stating that the malice must have-been expressed or declared by the accused “in words at-the time or immediately before the killing.” Malice, to-become what the law terms express malice, need not be-declared in words at all. Such malice is evidenced, not bywords only (for then a dumb person or a secret assassin-could never be guilty of committing a murder with express-malice), but is evidenced by external circumstances discovering that inward intention—such as lying in wait, antecedent menaces, former grudges, deliberate compassiugs, by the nature and character of the act done, the instrument, used, and the coolness and deliberation shown in preparing-it, as well as the manner in which the murder is committed.. All murder committed in the perpetration, or in the attempt, at the perpetration, of arson, rape, robbery, or burglary, ■ under our statute, is murder in the first degree—the malice-being shown by the murderer in the act of killing for such purposes.
Upon the subject of malice, and the distinction between-express and implied malice, see the leading case of McCoy v. The State, 25 Texas, 33; also, that of Farrer v. The State, 42 Texas, 265.
The testimony in the record does not show that the presiding judge charged the jury as the defendant states in Insist and 3d reasons set out in his motion for a new trial. The charge which was submitted to the jury, taken as a. whole, fairly and distinctly presented the law of the case, and was not calculated to mislead the jury.
The only remaining question for us to decide in this opin*508ion is, as to whether or not the verdict of the jury is contrary to the law and the evidence.
It is shown by the statement of facts that John Dwyer, "the deceased, was merchandizing at Oakville, Live Oak • county. That about the 18th of July, 1875, he left home for Rockport, where he was going to purchase goods. That he left Oakville in an old hack, driving a brown mule and bay horse. He had a draft on the First National Bank of ■ San Antonio, drawn by Kerr & Dewees, in favor of Hill & Dewees, for $600 silver, and indorsed in blank by Hill & Dewees. Dwyer arrived in Beeville, Bee county, on Sunday evening; then he got on a spree, and remained until "Tuesday evening, the 20th of July, 1875.
He was in the coffee-house of T. H. Marsden on Tuesday morning, and was drinking. He had with him the said draft drawn by Kerr & Dewees, which at one time he had deposited with the witness Marsden. He was wearing at the time a small silver watch, which had the initials of his name engraved on the inside of the case. About nine •o’clock, a. m., the defendant came into Marsden’s coffeehouse, when deceased recognized him, and asked him to go to Rockport with him, saying that he was well acquainted at Rockport, and if the defendant would go with him they could have a good time. Defendant first declined to "go, stating that he was going to San Antonio, or in that neighborhood. Deceased insisted on defendant’s going with him, agreeing, if he, defendant, would go with him, that he would pay his, •defendant’s, expenses, at the same time showing the defendant said draft. After examining the draft, defendant consented to go with him. Dwyer then carried him up to dinner. Defendant told the witness Riley that he had met the deceased only once before they met in his coffee-house.
Deceased asked defendant to take a drink with him; defendant declined at first, but finally did take a glass of wine. Defendant and deceased left Beeville together, in *509the evening, in an old hack, driving a brown mule and a bay-horse, taking the road to Rockport. They were both armed, with six-shooters. They were seen in the hack, by several, parties, on the Rockport road late Tuesday evening.
Very early on the following morning John Dwyer was. found dead, lying on his back, by the side of the Rockport road, in Bee county, six and a half miles from .Beeville. His pockets were turned out; no watch, draft, or other • valuables were found on or about his person, except two-25-cent pieces, which were lying under him. The witnesses. who saw his dead body believed he had been murdered in the evening or night before. He had been shot with a gun or pistol, the ball entering the top of the head, passing - under the left eye and out at the mouth, and his throat was. cut. There were no other wounds on the body. His left. arm was powder-burnt near the wrist. There was no. appearance of any struggle on the ground, or about his person. Nothing was seen of the defendant, the hack, or • horses.
About the last of July, 1875, the defendant presented a. • draft, which was identified as the one deceased had in Bee— ville, to the cashier of a bank in Indianola, Texas, to be cashed. The cashier telegraphed to San Antonio in relation to it, and was answered that the draft was good, but that the man was supposed to be a robber and murderer, and to have him arrested. The matter was placed in the hands of' the sheriff of Calhoun county, who arrested the defendant. At the time he was arrested he had on his person the draft,, and also the watch of the deceased. An attempt had been made to scratch out the initials of the owner’s name on the-inside of the case.
The state further proved, by Peter Fagan, that he was 'at. the house of the grandmother of the defendant and mother-in-law of witness about the last of July, 1875, when he-saw an old hack there, also a brown mule and a bay horse.. *510The accused was there at the same time; saw him ride up on a bay horse. The defendant offered no evidence in his behalf.
It would be impossible, in so short a synopsis of the testimony, to show the full force of it against the defendant. It would be difficult to find a stronger case of circumstantial •evidence.
We fully recognize the rule of law that, to justify a conviction on circumstantial evidence alone, the facts relied •on must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other hypothesis than that of his guilt. After calmly and dispassionately considering this case, as developed by the record, we are clearly of the opinion that the evidence is ■sufficient to warrant, beyond all reasonable doubt, the belief ;that the defendant is guilty of murder in the first degree, and that the jury were bound by their oaths to find him accordingly.
It remains for us to discharge our duty. The judgment •of the district court is affirmed.
Affirmed.