— This is the second appeal in this case. However, none of the questions now presented were presented by the first appeal. On the first trial the defendant was convicted of murder in the second degree, the judgment was reversed, and the cause remanded.—Allen’s Case, 146 Ala. 61, 41 South. 624. On the second trial the defendant pleaded former acquittal of murder in the first degree, the plea was sustained by the circuit court, and the defendant was put on trial before the jury for no higher crime than murder in the second degree. Therefore charges 5 and I, which presented for consideration or involved the crime of murder in the first degree, were inappropriate to and outside of the issues in the case and Avere properly refused.
*591The second instruction refnsed to tbe defendant is as follows: “While a deliberate' killing with a deadly weapon is presumed to be malicious; but, if the facts and circumstances attending the killing are in evidence, the presumption must be drawn from the whole evidence, and not from the nature of the weapon only.” The appellant' contends that this instruction should be held good, and it refusal error, on the authority of Eiland’s Case, 52 Ala. 333. Aside from the facts that the instruction is awkwardly constructed, we are of the opinion that it invades the province of the jury. Furthermore, in cases like this, the intentional use of a deadly weapon by the slayer may afford sufficient ground upon which to rest the presumption of malice, unless the evidence which proves the killing shows the excuse or extenuation.—Miller’s Case, 107 Ala. 41, 19 South. 37; Thayer’s Case, 138 Ala. 39, 35 South. 406; Kennedy’s Case, 140 Ala. 1, 37 South. 90; Wilson’s Case, 140 Ala. 43, 37 South. 93. The state’s evidence tended to show a homicide by the intentional and deliberate use of a deadly weapon and without the semblhnce of justification or extenuation. The only evidence tending to show excuse or palliation was offered by the defense, and its worthiness of belief by the jury should have been hypothesized in the instruction.
Charge G, refused to the defendant, is argumentative. Besides, the use of the words, “the mere fact that defendant killed Jim Allen,” would seem to imply that the evidence shows only the killing, without any circumstances of aggravation or otherwise. The charge was properly refused.—Miller’s Case, 107 Ala. 41, 19 South. 37.
Whether the piece of timber, which the evidence for the defendant tended to show the deceased had in his hands, was a deadly weapon, was, under the evidence in the case, a question, not of law, but of fact, for deter-, ruination by the jury under appropriate instructions by the court. In this view Charge E was properly refused to defendant.—Tribble’s Case, 143 Ala. 23, 40 South. 938; Tesney’s Case, 77 Ala. 39; Sylvester’s Case, 72 Ala. 201; Vol. 26, Cent. Dig. “Homicide,” § 562.
*592Charge O was properly refused.—Avery’s Case, 124 Ala. 20, 27 South. 505.
Charge J was calculated to lead the jury to. believe that the evidence showed only a mere reckless taking of human life, and .was properly refused. Besides, the charge is argumentative.
Charge P was properly refused.—Thayer’s Case, 138 Ala. 39, 35 South. 406; Lewis’ Case, 96 Ala. 6, 11 South. 259, 38 Am. St. Rep. 75.
Charge M fails to set out the elements of self-defense, and was properly refused.—Allen’s Case, 146 Ala. 61, 41 South. 624.
The burden of proof does not rest on the state to prove that a defendant is at fault in bringing on a difficulty, unless it appears from the evidence that the defendant is in imminent peril of losing his life or of grievous bodily harm; and charge F, for failing to hypothesize such imminent peril, was properly refused.— Roden’s dase, 97 Ala. 54, 12 South. 419; Mitchell’s Case, 129 Ala. 23, 30 South. 348.
Under the evidence there -was nothing to authorize a verdict for manslaughter in the second degree, and the court did not err in saying to the jury that that the degree of homicide Avas not involved in the case. That the laAv presumes that a man intends to do Arhat he does- is a legal truism, and the oral charge announcing this proposition is free from error.
The court, in the oral charge, said: “The burden is on the defendant to show that he was in great danger of losing Ms life or suffering great bodily harm.” This charge is incomplete, -and exacts too high a- degree of proof. It is not indispensable that the danger of life or limb should be real; but, if the appearances are such as would lead the mine! of a reasonably prudent man to the honest belief that such danger exists’ that is sufficient in respect to the doctrine of imminent danger. We are constrained to hold that- the charge- .cpntains error prejudicial to the defendant, which'must work a reversal of the judgment and sentence. - :-
Reversed' and remanded.
Tyson, O. J., and Haealson and Simpson, JJ., concur.