This appeal is from a conviction of murder of the first degree, to which the death penalty has been affixed as the punishment.
There is but a single bill of exceptions in the record, and that is saved to the action of the court in overruling the motion for a new trial, in which two grounds for the motion are stated. 1. That the verdict is contrary to the law and the evidence. 2. That the evidence adduced on the trial did not show that the murder had been committed with express malice.
*400It is shown by the evidence that Johnson, the deceased, was found lying dead upon the floor of the house in which he was keeping a store for one Dignowitty, early on a Sunday morning, about the 1st of November, 1884. His hands were tied behind his back, and there was a bullet hole through his head. He had evidently been killed some hours previously, and the store-house had been robbed of a number of articles, including some silver-grey blankets with red and yellow borders, several carbines or rifles, and an extra large-sized pair of O. K. boots. On the same Sunday morning one of the witnesses saw defendant fourteen miles from the scene of the murder, turning loose on the prairie the animal which he had been riding, and which was completely broken down from hard riding. The witness saw defendant go off from where he abandoned the horse with a large bundle upon his back, the bundle being made out of two new blankets with red and yellow borders. Defendant was arrested for the theft of the horse, which he had stolen and ridden, and at his examining trial for this latter offense he was wearing a pair of O. K. boots so much too large for him that he was wearing the right on the left foot and the left on the right.
The evidence is wholly circumstantial, but many other circumstances are detailed, in addition to those stated, which point, as a whole, with the unerring certainty of fate to this appellant as one, if not the sole, perpetrator of the horrible crime. It was a murder committed in the perpetration of robbery. The murder was evidently committed after deceased had been rendered powerless — his hands having been tied behind his back — and yet it is claimed there is no evidence of express malice. Murder in the perpetration of robbery is per se murder of the first degree (Penal Code, art. 606); and a murder so committed fully evidences express malice. (Sharpe v. The State, 17 Texas Ct. App., 487; Mitchell v. The State, 1 Texas Ct. App., 195; Roach v. The State, 8 Texas Ct. App., 479.) Circumstances of enormity, cruelty, deliberate malignity, and cool, calculating compassings, when attending a homicide, oftentimes furnish most satisfactory as well as sufficient evidence to establish the inference that the killing was upon express malice. (McCoy v. The State, 25 Texas, 33.)
In our opinion, the evidence is most conclusive of defendant’s guilt. If guilty at all, and of that we have no doubt, he can be guilty of no less an offense than guilty of murder of the first degree,— a murder unrelieved by a single palliating circumstance, and aggravated by the fact that it was committed solely for purposes of robbery. Appellant has forfeited his life, in the opinion of a jury *401of his countrymen, by his own inhuman conduct, and we see no reason, his trial having been fair and impartial, why the demand of the law should be interfered with.
The judgment is in all things affirmed.
Affirmed.
[Opinion delivered November 18, 1885.]