Herrin v. State

Citations

• 33 Tex. 638

Syllabus

<p>1. The common law definition of express malice as a deliberate intention of doing bodily barm to another, not authorized by law, has been adopted in former decisions of this court.</p> <p>3. It is not necessary that the deliberate, premeditated intention should be formed and matured prior to the occasion at which it is carried into execution. If executed the moment it has been formed in the mind, the offense is the same as if it had existed for a much longer time.</p> <p>3. Deceased and one B., while riding together on a country road, were assailed by three strangers, who rushed from the bushes, with pistols drawn, and ordered them to halt or they would shoot them. B. was unarmed, but deceased had a six-shooter pistol, which the assailing party ordered him to surrender. He refused to surrender it to them, but consented to give it to B., who, under orders from the assailants, received and placed it on the ground. B. made his escape into the hushes, and in a few minutes heard four shots in the direction of where he had left the others, and also heard a cry which he thought was in the voice of the deceased, who, a few hours afterwards, was found dead on the ground, pierced with four bullet wounds, and a short distance off his pistol was found, with two of its barrels discharged. About seventy yards from him lay one of the assailants, severely wounded by a pistol shot; hut, according to B.’s testimony, this man was shot by one of his own comrades (who, by other testimony, was proved to be his brother) ■ on a sudden quarrel arising between them while endeavoring to get deceased’s pistol irom him. The assailing party gave early notice of the difficulty, and stopped at the nearest house, where they were arrested for the murder of the deceased. B. was the only witness of what transpired between the parties. Held, that the facts make a case against the prisoners, in which the “ proof is evident or the presumption great,” and there was no error in refusing them the privile