The appellant was convicted in the circuit court of Lincoln county on an indictment charging an assault and battery with intent to kill and murder, and was sentenced to the state penitentiary for a period of five years.
The state offered seven eyewitnesses to the shooting in question. They gave a full and detailed account of the facts and circumstances surrounding the shooting, and their testimony, if believed, made a clear case of guilt of the crime charged. The appellant offered an equal number of eyewitnesses who testified fully as to the facts and circumstances surrounding the shooting, and their testimony tended to establish that the appellant shot in self-defense.
Upon this state of the record the court granted the state an instruction to the effect that "malice may be presumed from the deliberate use of a deadly weapon." It has been repeatedly held by this court that where all the facts and circumstances surrounding a homicide, or an alleged assault and battery with intent to kill and murder, are fully disclosed by the evidence, it is error to instruct the jury that the law presumes malice from the deliberate use of a deadly weapon. Walker v. State,146 Miss. 510, 112 So. 673; Cumberland v. State. 110 Miss. 521, 70 So. 695; Smith v. State, 161 Miss. 430, 137 So. 96; Winchester v. State, 163 Miss. 462, 142 So. 454.
In the case at bar there was a full disclosure of all the facts and circumstances surrounding the shooting, and therefore for the error in granting the instruction complained of the judgment of the court below must be reversed.
Reversed and remanded. *Page 164