We have given to this case a carerai consideration. The evidence and the law applicable thereto have been ably presented and discussed by the appellant’s counsel, and the attorney general. The court is still of the opinion that the application for bail must be refused. It would not be proper for us to discuss the facts of the case, further than to say that in the opinion of this court the evidence adduced on the part of the State, if believed, is sufficient to show a homicide committed by .appellant upon express malice.
In McCoy v. State, 25 Texas, 33, it is said: “ However sudden the killing may be, if the means used, or manner of doing it, or other external circumstances attending it, indicate a sedate mind and formed design to kill, or to do great bodily injury, and a murder be committed, it will be upon express malice. In such case, if it appeared that the means used were likely to kill or do great bodily harm, endangering life, and a killing took place, the natural inference would be that it was upon express malice, unless it was attended with such circumstances as showed an absence of such formed design, or as showed the act to be the result of an indeliberate, rash, sudden impulse or passion; ” and again, in concluding the opinion in that case, it is said: “ It may be concluded then, in determining whether a murder has been committed with express malice or not, the important questions are: do the external facts and circumstances at the time of the killing, before or after that time, having connection with it, or relation to it, furnish satisfactory evidence of the existence of a sedate, delibérate mind, on the part of the person killing, at the time he does the act % Do they show a formed design to take the life of the person slain, or do *322him some serious bodily harm, which in its necessary or probable consequences may end in his death; or such general, reckless disregard of human life, as necessarily includes a formed design against the life of the person slain ? If they do, the killing, if it amount to murder, will be upon express malice.”
In the case before us the external facts and circumstances, as developed by the evidence, both at the time of the killing and immediately thereafter, are, if true, in our opinion amply sufficient to establish satisfactorily a. sedate, deliberate mind, and a formed design on the part of appellant to kill the deceased. The evidence in the-case is conflicting, and the conflict relates to the most material questions. Two witnesses testify positively that appellant did not do the killing, but that it was the act of other persons. If appellant’s testimony is true, he is not guilty of the homicide. But the witnesses were all before the judge who first heard this application for bail, and he was in a far better situation than we are to determine as to the credibility of the witnesses. It would be only in an extreme case,—a case where it was evident to us that the judge below had erred,—that this court would revise the judgment of the judge before whom the case was originally examined, upon the matter of a conflict of evidence and the credibility of witnesses. (Drury v. State, 25 Texas, 45.)
In Ex Parte Foster, 5 Texas Ct. App. 625, the rule for determining whether or not bail should be granted, is prescribed as follows: To refuse bail in all cases where a judge would sustain a capital conviction, if pronounced by a jury, on such evidence of guilt as is exhibited on the hearing for bail. To admit to bail, where the evidence would not sustain such conviction. And again in the same case it is said: “ If the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been commit*323ted; that the accused is the guilty agent; and that he would probably be punished capitally if the law is administered, bail is not a matter of right.”
The motion for rehearing is overruled.
Affirmed.