## Facts

- Tom Banks and a companion walked near a railroad track as a train approached.
- The companion handed Banks a pistol and suggested that Banks fire into the passing train.
- Banks fired into the moving, occupied train.
- The shot struck and killed a railroad brakeman performing duties on the train.
- The record showed no prior quarrel, personal ill will, or specific intent to kill the brakeman or any particular person; the act was an unprovoked shooting into an occupied train.
- A jury convicted Banks of murder, and the trial court imposed the death penalty.

## Issues

1. Whether evidence that Banks deliberately fired into a passing, occupied train, without targeting a specific person, was sufficient to prove malice aforethought and support a murder conviction.
2. Whether malice may be implied from an intentional, unjustified act inherently dangerous to human life, despite the absence of proof of personal animus or an express intent to kill.

## Decision

- The court affirmed the murder conviction and left the death sentence undisturbed.
- The court held the evidence sufficient to establish malice aforethought because Banks deliberately and without justification shot into a moving, occupied train, a type of act foreseeably capable of causing death.

## Legal Principles

- Malice aforethought may be implied when a defendant intentionally commits an unjustified act so inherently dangerous to human life that death or serious injury is a natural and probable consequence.
- Proof of personal hatred toward the victim or a specific design to kill a particular individual is not required where the circumstances show extreme disregard for human life.
- Intent to commit the dangerous act, combined with its lethal character and lack of justification or excuse, can support a murder conviction rather than a lesser homicide offense.

## Conclusion

A deliberate, unprovoked shooting into an occupied moving train supports an inference of implied malice sufficient for murder, even without evidence that the defendant intended to kill a particular person; the conviction and death sentence were affirmed.


Banks v. State, 211 S.W. 217 (Tex. Crim. App. 1919)