Ex Parte Hickox , 90 Tex. Crim. 139 ( 1921 )

The burden is upon the state to produce "proof evident" of a capital offense. To discharge this burden, proof of express malice is required. Firmin v. State, 60 Tex.Crim. Rep.; Ex parte Townsley, 87 Tex.Crim. Rep., 220 S.W. Rep., 1092; Ex parte Young, 87 Tex.Crim. Rep..

That appellant shot deceased while he and appellant's son were fighting does not alone suffice. Account should be taken of the state of appellant's mind. He may have been wholly unjustifiable and still not guilty of a capital offense. Cordono v. State,56 Tex. Crim. 459; Rice v. State, 51 Tex.Crim. Rep.; Farrer v. State, 42 Tex.Crim. Rep.. Inferences adverse to the accused are not to be drawn from the absence of evidence which the state could have produced. Express malice is not presumed but must be proved. Hamby v. State, 36 Tex. Crim. 523; Dougherty v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 401; Potts v. State, 56 Tex.Crim. Rep..

The state revealed the claim that appellant's son had been "beat up" by deceased. The effect of the beating on appellant's mind would depend upon the nature and cause of the beating, and its proximity in time of the homicide. Evidence of these matters was at the command of the state.

The idea of conspiracy with Tom Hickox seems not proved but negatived by the finding of the trial judge that Tom Hickox was entitled to bail in a small sum. The inferences from the State's evidence that appellant's passion was aroused to a degree preventing deliberation by the previous conduct of deceased in connection with the present encounter are not overcome by any evidence found in the record. If facts to the contrary existed, they should have been introduced by the state. In their absence, the presumption that they did not exist should obtain.

In my opinion, the judgment should be reversed.