1. Unquestionably in this case if devolved upon the State to prove, by competent evidence, to the satisfaction of the jury, beyond a reasonable doubt, that the homicide was committed by appellant with express malice; that is, with a sedate and deliberate mind and formed design on the part of appellant to kill tue deceased, or to do him some serious bodily injury which might result in his death. But it is not required that express malice should be proved by direct evidence of its existence, or demonstrated with mathematical certainty. All that is required is that the evidence of its existence be such as might be reasonably sufficient to satisfy the minds of the jury that it did in fact exist. Such proof may be entirely circumstantial, and may be deduced from evidence “of the cool, calm and circumspect deportment and bearing of the party when the act is done, and immediately preceding and subsequent thereto; *330his 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, ” (Farrar v. The State, 42 Texas, 265; Gaitan v. The State, 11 Texas Ct. App., 544.)
Opinion delivered January 23, 1884.In the case at bar we are of the opinion that the evidence to establish express malice was competent and amply sufficient. Appellant, without the least apparent cause, shot his victim four times with a pistol, and that victim was at the time unarmed and very drunk, and, as shown by the evidence, doing no act nor saying anything to provoke, or in the least mitigate the wanton, cruel and deliberate act of appellant.
2. In our judgment there was no evidence in the case which required a charge from the court upon the law of murder in the second degree. As it appears in the record, the evidence leaves no room for any other reasonable conclusion than that the homicide was upon express malice, and was murder in the first degree.
We find no error in the proceedings and conviction, and the judgment is affirmed.
Affirmed.