The court in its oral charge, very correctly, it is not disputed, charged the jury on the law of murder. At its conclusion, the defendant in writing asked the court to charge the jury as to the law relating to manslaughter in the first degree. The court indorsed the request “refused,” and did refuse to charge upon that subject. If under the law and evidence of the case, the jury might have found the defendant not guilty of murder in either degree, but of manslaughter in the first degree, it was proper for the court to charge them upon that phase of the case. We have before now held, that when an indictment comprehends every degree of criminal homicide, and a conviction for murder is sought, tlio proper rule is to charge upon the characteristics and constituents of murder in each of its degrees, and upon manslaughter-also, unless there is an absence of all evidence having a tendency to reduce the offense to manslaughter.—Brown v. The State, 20 So. Rep. 103; Pierson v. The State, 99 Ala. 153; DeArman v. The State, 71 Ala. 351. That there was no such evidence introduced in this case we apprehend cannot be safely affirmed.
Charge 1 requested and refused has been repeatedly condemned by this court, and it need not be considered. Gibson v. The State, 91 Ala. 64; Toliver v. The State, 94 Ala. 111; Thomas v. The State, 106 Ala. 19.
The 2d charge requested should not have been given. The jury may infer malice from the use of a deadly weapon alone,, “unless the evidence which proves the killing rebuts the presumption.” When the facts which prove the killing do not rebut the presumption which the law raises, the burden is on the defendant by other evidence to rebut it, and failing to meet this burden, the presumption of the law is against him. The charge contains the instruction, that the conclusion as to whether or not there was malice,is for the jury to draw, but certainly it is not without consideration of all the evidence, which necessary instruction the charge does not *36contain.—Sylvester v. The State, 72 Ala. 206; Hornsby v. The State, 94 Ala. 66; Stillwell v. The State, 107 Ala. 16.
Charge No. 3 was abstract and misleading. There was no evidence that defendant wa.s required, by what deceased had said or done, to leave his business, nor does the evidence tend to show that he did more than arm himself and await developments.
The court probably refused the 4th charge on two grounds ; the first, for the same reason, that in its oral charge, it refused to charge on the law of manslaughter, because under the evidence it was deemed inapplicable to the homicide ; and secondly, for the concluding words of the charge, “if not wholly excusable, would be guilty of no higher grade of offense than manslaughter in the first or second degree.” For this last instruction the charge was vicious. The blow or injury having been aimed at the party slain, manslaughter in the second degree has no place in the case, and the homicide is either excusable, manslaughter in the first degree, or murder.—Ex parte Brown, 65 Ala. 446; Collier v. The State, 69 Ala. 247.
The 5th charge ignores the evidence tending to show fault in bringing on the difficulty, and of the duty of defendant to have retreated, if he could have done so safely-, and without apparently increasing his peril.—McDaniel’s Case, 76 Ala. 7; Gibson’s Case, 91 Ala. 64, supra; Wilkinson v. The State, 98 Ala. 7.
Charges 6 and 7 should have been given. The 6th does no more than assert the simple and correct proposition, that there cannot be murder in either degree, where there is no malice ; and the 7th is to the same effect, with the additional instruction, — correct as applied to the evidence, — that if not guilty of murder in either degree, — there being an absence, as postulated, of malice, — the defendant could not be convicted, in such case, of a higher degree of guilt than manslaughter in the first degree.
The 8th charge was properly refused, certainly for the reason, that it contains an instruction as to manslaughter in the second degree, in which the criminal intent hypothesized is not involved, and is inapplicable to the case. And as to this charge, and the 9th, — which, without more was an improper instruction, calculated to confuse and mislead, — let it be added, as we have before *37held, that "If the insult or provocation is of such a character as is reasonably calculated to kindle passion and provoke sudden resentment, and if the proof shows that the insult or provocation had this effect, and the homicide is traceable solely to the influence of passion kindled by the insult or provocation, then such killing is not willful, malicious,deliberate and premeditated,and is not murder in the first degree, but murder in the second degree. Mere words, however offensive, cannot reduce the offense to manslaugther.”—Ex parte Sloane, 95 Ala. 24; Watson v. The State, 82 Ala. 12.
The 10th charge appears to be free from error, and should have been given. The 11th and 12th are so fatally defective, that they need not be considered.—McQueen v. The State, 103 Ala. 13; Gibson v. The State, 91 Ala. 64; Perry v. The State, 94 Ala. 25.
The 13th singles out the first remark made by defendant to deceased, when he approached him, and makes that the basis for-the instruction requested, without reference to what followed in the interview between the parties, tending to show fault on the part of defendant, was argumentative and properly refused.—Gibson v. The State, 91 Ala. 64. Besides, it was otherwise faulty. His intention is a fact to be ascertained from what he said and did, and what his conduct fairly implied, and he is answerable therefor, without reference to his real motive secretly entertained.
The 14th was faulty for the reasons that from anything said in the charge, the defendant may not have been free from fault in precipitating the fatal termination. If each party was equally at fault in provoking it, the defendant would not have been faultless ; and besides, it is argumentative.
No 15 was not free from fault. It was incumbent on the defendant to show, that at the time there was a necessity to take life, or that the circumstances were such as to impress on the mind of a reasonable person, a reasonable belief that there was such a necessity, and that there was no reasonable mode of retreat or escape.—Naugher’s Case, 105 Ala. 26; Wilkins’ Case, 98 Ala. 1. When a defendant has shown, that he was in imminent peril ot appeared to be so, as an excuse for killing his adversary, this fact alone does not justify the homicide, unless he further makes it reasonably appear that there *38was no reasonable means of escape or retreat. The proof of the first fact, does not do away, with the necessity of proving the latter, which the charge assumes to be the case, in the use of the words, “and has thus raised a reasonable doubt as to whether there was any other reasonable means of escape besides to shoot,” &c., following the postulate of <f reasonable belief of danger to defendant’s life.” From what has been said, the vice of charges 16 and 17 manifestly appear. The effort in the 18th charge to draw the distinction between reasonable doubt and the want of reasonable satisfaction, is argumentative aüd misleading.
For the errors indicated, the judgment and sentence of the court below are reversed, and the cause remanded.
Reversed and remanded.