Moore v. State

Decision Date31 January 1869
Citation31 Tex. 572
CourtTexas Supreme Court

The distinction between express and implied malice has been thoroughly discussed in McCoy v. The State, 25 Tex. 33, and Ake v. The State, 30 Tex. 466.

Where the killing was without provocation or extenuating circumstances, it was the result of formed design, and bail was properly refused. Pas. Dig. art. 2267, note 672.

APPEAL from Fayette. The case was tried before Hon. ISAAC B. MCFARLAND, one of the district judges.

The applicant was indicted for murder in Fayette county. Upon motion of the accused the case was continued and he moved for bail, which motion was overruled, and he appealed. The evidence used at the examining court and on the motion was in the record. It is substantially as stated by the court. The deceased, with his party, was herding cattle; the applicant insisted on a steer being turned out of the drove, as he was a work-ox. This being denied by A. Jones the appellant gave him the lie, and immediately fired at A. Jones. The ball struck the brother of the deceased and killed him. Neither brother was armed. The killing was sudden, but without provocation. The appellant rode off, but was followed and arrested.

No briefs have been furnished to the reporter.


There is but a single question to determine: was the killing done upon express or implied malice? If the former, the offense is capital and not bailable; if the latter, under our constitution, the prisoner is of right entitled to his discharge upon sufficient sureties.

The distinction between express and implied malice has been so thoroughly discussed in the exhaustive opinion of Judge ROBERTS, in McCoy v. The State, 25 Tex. 33, and Williams, Ake et al. Austin term, 1867 (Ake v. The State, 30 Tex. 466), that we deem it unnecessary to renew the discussion.

The applicant, mounted on a horse, approached the deceased and several others who were herding beeves on the prairie. It appears that the father of applicant had authorized Andrew Jones, a brother of the deceased, to take up two beeves and dispose of them in satisfaction of a debt. Two beeves had been thus selected and placed in the herd. The defendant insisted that one of the beeves was a work-ox, and should be turned out of the drove. The brother of deceased replied, that he “did not believe” it was a work-steer, whereupon defendant called him d_____d liar. Andrew Jones, the brother, unarmed, and in his shirt sleeves, was...

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