¶1The defendant was indicted for the offence1 of murder, charged to have been committed with express malice, and on the trial thereof was convicted of murder in the first degree, and adjudged to be executed. A motion was made for new trial, which was overruled; to which ruling the defendant excepted, and gave notice of appeal to this court.
¶2The main question to be decided in this case is this : Does the evidence in the record make out a case of rmirder committed with express malice? In this State, all murder committed with express malice is murder in the first degree, and all murder not of the first degree is murder in the second decree.
¶3“ Express malice is where one with a sedate, deliberate mind, and formed design, doth kill another ; which formed design is evidenced by external circumstances discovering that inward intention, — as, lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.” 4 Bla. Com. 198.
¶4Where one man, with á cool, composed mind, in pursuance of a formed design to kill another, or to inflict upon him some serious bodily harm which would probably end in depriving him of life, does kill such person, in the absence of the circumstances which reduce the offence to negligent *500homicide or manslaughter, or which excuse or justify the homicide, such killing would be a murder committed with express malice. In looking through the evidence in the record, we are not satisfied that it makes out a case of murder in the first degree under the law.
¶5Because the verdict is against the weight of the evidence, the judgment of the District Court is reversed and the cause remanded.
¶6Reversed and, remanded.