Ex Parte Cantu , 135 Tex. Crim. 281 ( 1938 )

Relator resists the conclusion that he is not entitled to bail largely on the ground, as we understand it, that the killing was unexplained and that evidence of express malice is lacking in the absence of which denial of bail would be unauthorized.

The following excerpts are taken from the opinion in McCoy v. State, 25 Tex. 33. "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 do great bodily injury, and a murder be committed, it will be upon express malice. 1 Hawkins 96, Sec. 23. 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. Whiteford v. The Commonwealth, 6 Rand. 723-4. The rule that from the isolated fact of killing the malice is implied, and not express, however correct as an abstract proposition, can seldom be of practical utility, in ascertaining the species of malice. 2 Gratt 594; Wright (Ohio) 20; Am. Law Homicide, 386; Pennsylvania v. Lewis et al., Add. (Pa.) 282. For that fact will rarely ever be presented in the entire absence of all antecedent or attending circumstances. Whether they be arrived at by positive or circumstantial evidence, they will constitute a legitimate basis for an inference as to the species of malice. * * * The object of the proof is to establish the existence of the malice in fact, towards the deceased (as it has been explained), at the time of the killing, which prompted him to the commission of the deed. The sufficiency of the evidence to establish it is determined, as that of any other fact, by its effect to reasonably satisfy the mind. * * * 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 or relating to it, furnish satisfactory evidence of the existence of a sedate, deliberate 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 him 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."

Giving application to the principles stated, we are unable to reach the conclusion that the evidence of express malice is wanting. Relator's wife was shot twice. Apparently, from the present record, relator left her dead body lying in the house while he went away to town, laying the predicate for an alibi on the claim that she was killed during his absence and her body discovered by him on his return home. Such may not be the actual facts, but the record before us supports such conclusions.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.