The appellant Pickett was convicted of murder of the first degree, his punishment being assessed at confinement in the penitentiary for life.
Upon express and implied malice the court below charged as follows: “4th. Express malice is when one, with a calm and sedate mind and a deliberate and formed design, in pursuance of such design, doth kill another; which condition of mind is usually evidenced by external circumstances, such as lying in wait, antecedent menaces, former grudges, deliberate acts of preparation, etc. You will notice from the foregoing definition of express malice, that, in order to constitute a killing upon express malice, the mind of the slayer must be *97cool and sedate, and while in this condition he must have formed the design to kill and have actually killed the party in pursuance of such formed design; or, if the design to kill was formed when the mind was excited and agitated, then, in order to make the killing upon express malice, there must have been time for the mind of the slayer to cool and for him to deliberate upon the character of the act he was about to commit, before the killing occurred. And if the killing occurred while the mind of the slayer was agitated from any cause, so that the same was incapable of cool reflection upon the character of the act he was about to commit, then the killing could not be upon express malice. By the words ‘ calm, cool and sedate ’ is not meant that the mind must be entirely free from agitation, but only sufficiently so for it to understand and reflect upon the nature of the act.
“ 5th. Implied malice is where one party kills another without the circumstances and formed design as are required to constitute a killing upon express malice, but under such circumstances as do not reduce the killing to manslaughter or negligent homicide, or which excuse or justify the killing.
“ 6th. Whenever it is conclusively shown that one person has killed another, and it does not appear beyond a reasonable doubt, from the evidence, that the killing was in pursuance of a design deliberately formed, as herein-before defined to you, and where there is no evidence which reduces or tends to reduce the killing to manslaughter or negligent homicide, or which excuses or justifies the killing, the killing is deemed in law to have been done with express malice.”
This sixth paragraph is clearly erroneous; so palpably so that it requires no analysis to make the error appear. If implied instead of express had been inserted, it would not have been objectionable as a charge upon implied malice. From the preceding paragraphs and its own con*98text, we believe this charge was intended to apply to implied malice, and that the word express was not intended, or that there was a mistake in the transcript. We, however, must be governed by the record. Assuming this charge to have been given, which we are compeEed to do, the judgment must be reversed.
There are twenty-three errors assigned, quite a number of which refer to supposed errors in the charges given, and some to errors in not giving the charges requested by defendant. Suffice it to say that, after a very careful examination of the charges given and refused, we have not discovered anything wrong or erroneous in these respects. We have not time to discuss these assignments; to do so, would lead us into a field which embraces almost aE the law upon culpable homicide. There are no new questions presented and hence no necessity.
Other assignments are based upon supposed irregularities in the trial; these will not arise upon a new trial. But we deem it our duty to give, in more, than a passing notice, our views or opinion on the remarks of the district attorney.
It appears by the record that the character of deceased as a dangerous and violent man was in issue; that one 0. J. Woods was on the stand as a witness for the State, and that defendant’s counsel asked the witness “If he knew of deceased Williams knocking a man down at a horse race and dragging him over the ground for the amusement of the crowd ? ” To this the State objected, and the objection was sustained. The defendant’s counsel then asked the witness “if he knew about deceased having three fights in one week at preaching at the Lonesome Dove school house.” To this the State’s counsel objected in a somewhat excited manner, and stated “that it was apparent that the defendant’s counsel were seeking by illegal questions to prejudice the rights of the State, and if they persisted in it that they, the State’s *99counsel, would prejudice the rights of defendant,— that they would allude to an innocent man being quirted to death,” and at this time pointing his hand in an excited manner at defendant. At this point the court interfered and rebuked counsel on both sides for their improper conduct.
Concede that the defendant did not have the right to prove individual acts of deceased tending to show him a violent and dangerous man, still his counsel may have believed that he was, under the circumstances, entitled to this proof. Again, the counsel may have known that these questions were not legal; still, if not objected to, defendant would have had the right to make the proof. The second attempt to prove similar acts may have- been with the view of embracing the ruling of the court in one bill. If these questions were propounded continuously, or with intent to prejudice the rights of the State, it was the duty of the court to have repressed and rebuked the counsel for defendant. The court did not do this until after the remarks of counsel for the State; and hence we infer that the conduct of counsel for defendant was not considered improper by the court, or action would have been taken before it was.
Be this as it may, this defendant being on trial for his life, there was no excuse for the learned counsel for the State to so far forget himself and make the remarks above referred to. The court below rebuked counsel on both sides. Whether those for defendant were deserving it we are unable to decide, having no knowledge of their objects or intentions; but this rebuke, whether merited or unmerited, was not the whole duty of the court. It being evident that the remarks of the State’s counsel were intended to prejudice the rights of defendant, and being in their nature calculated to have that effect, the court should have instructed the jury upon their duty in regard to this matter. The jury should have been told *100in effect and in unmistakable terms that they must try defendant by the evidence, and to disregard these remarks. We have very serious doubts as to the action of the court in overruling the motion for a new trial based, upon this matter, but we feel confident that upon an another trial this conduct will not be repeated.
For the error in the charge, the judgment is reversed and the cause remanded.
Reversed and remanded.