Appellant was tried upon an indictment charging him with the murder of one Luz Contreras in Cameron county on the night of the 13th day of August, 1881. He was found guilty of murder of the first degree, and by the verdict and judgment rendered his punishment was assessed at death.
Several grounds are set forth in the motion for new trial, the principal one being that “the court erred in permitting the jury to take with them in their retirement extracts from the testimony of Joseph Hull.” It appears that the evidence embraced in this ground of complaint was the deposition of the witness as taken at the coroner’s inquest held over the body of the deceased on the 15th of August, 1881. As stated and argued in the brief of appellant’s counsel, the objection to this evidence was that the prerequisites of the statute [Code Crim. Proc. arts. 772, 773, 774] had not been observed in the preparation of the evidence, nor complied with in the proposed introduction of said testimony. Whether these objections are well founded or not, it is impossible for us to *560determine from the record. No objection to the admissibility of the testimony appears to have been interposed by defendant at the time it was offered, and no subsequent motion was made to exclude it; and there is no bill of exceptions showing the objections and verifying their correctness. This should appear in the record, else there is nothing in the points made upon which this court can piss advisedly. . Ballinger v. State, on motion for rehearing, decided at the present term, ante, p. 323. For aught that appears the evidence went to the jury without objection from defendant, and he is in no attitude permitting him to complain of its admission now. Johnson v. State, 27 Texas, 758.
Another objection insisted upon against the validity of the judgment is that the evidence fails to show express malice, the essential ingredient of murder of the first degree; and it is contended that if the killing was not upon self-defense then the crime was manslaughter, or at most murder in the second degree. All of these issues were submitted by the court in a charge to the jury which is characterized by apparent fairness and sufficiency.
It is true that the express malice necessary to constitute murder of the first degree must be shown, and shown too as the result of a sedate, deliberate mind and formed design to kill. “But, as has been frequently held by this court (as was said in Farrer v. State), it does not follow, because the killing may be the result of the prompt and speedy execution of a hasty or immediate resolution, that it may not have been done with express malice. The law has no scales to measure the time in which a sedate, deliberate mind may reach a formed design to kill or to do some serious bodily injury which may probably result in death. When such design is once formed, the haste with which it is put in execution in no way affects or modifies the character of the act, or the degree of guilt thereby incurred. As the difference in the degree of murder does *561not result from the length of time taken to form the design, or the speed with which it is executed, but upon the state and condition of the mind in which the design is formed, it is obvious that it will often be difficult, in homicides without antecedent explanatory facts showing their true character, to determine to which class the particular case under consideration belongs. It is always to be borne in mind, however, whatever difficulty there may be in establishing the fact that the killing was with express malice, still it is incumbent upon the State to prove it before the accused be properly convicted of murder of the first degree. This may be done by proof of the cool, calm and circumspect deportment and bearing of the party when the act is done, and immediately preceding and subsequent thereto; his apparent freedom from passion or excitement; the absence of any obvious or known cause to disturb his mind or arouse his passions; the nature and character of the act done; the instrument used as well as the manner in which the murder is committed; declarations indicating not only the state of the mind but also the purpose and intent with which he acts, and the motives by which he is actuated; and all such other matters and things pertinent to the issue which may be suggested by the facts.” Farrer v. State, 42 Texas, 265.
Thus it will be seen that, whilst express malice must be proved, it is not required that it should be demonstrated to mathematical certainty by the evidence; all that is required is that the evidence be such as might be reasonably sufficient to satisfy and convince the jury of its existence. Richarte v. State, 5 Texas Ct. App. 359; Jackson v. State, 9 Texas Ct. App. 114. No evidential fact can be demonstrated. Wharf. Cr. Evid. § 7.
Upon the theory of the defense that the killing was prompted by passion aroused on account of insults offered by deceased to the sister of defendant, the charge of the *562court fully presented the law of manslaughter as applicable to such state of facts. Eanes v. State, 10 Texas Ct. App. 421.
Amongst other requested instructions asked for defendant and refused by the court, we find the following, viz.: “You may take into consideration the fact that the defendant Gaitan was intoxicated at the time of the commission of the crime, in deciding the adequacy of the cause of the passion which actuated, or if (whether?) the cause of his passion was adequate in law to reduce the crime from, murder in the second degree to manslaughter.” This instruction is manifestly incorrect as a legal proposition. Manslaughter, under our statute, depends wholly and entirely upon the existence or non-existence of an adequate cause sufficient to render the mind incapable of cool reflection. Penal Code, art. 593 et seq. There can be no manslaughter which is not predicable upon adequate cause. Hill v. State, decided at the present term, ante, p. 456. Whether the party committing the homicide was sober or intoxicated cannot affect the question of the existence or non-existence of such adequate cause, and without the adequate cause there can be no manslaughter. As was said in Farrer's case, supra: “It is therefore quite obvious that the mere fact of being drunk, or the 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.” 42 Texas, 272.
Evidence of intoxication or drunkenness is of vital importance only in the class of offenses in which criminality depends solely or to a certain degree upon the state or condition of the mind at the time the wrongful act is done, showing the ability or inability of the mind to form or entertain a sedate or ordinate criminal design. Ferrell v. State, 43 Texas, 503; Scott v. State (present term). Such evidence may be essential in determining the degrees of *563murder, or in showing total want of criminal intention, aiid consequent immunity from any responsibility whatsoever. Colbath v. State, 2 Texas Ct. App. 391.
When we consider the sufficiency of the evidence in connection with the principles of law above enunciated, we find no occasion or reason to interfere with the verdict and judgment rendered, finding appellant guilty of murder of the first degree. There are in the record before us no circumstances, even the slightest, of mitigation, much less justification or excuse, for the gross, wanton and unprovoked murder by appellant of a quiet, peaceable, inoffensive and unarmed man.
The judgment of the court below is in all things affirmed.
Affirmed.