delivered the opinion of the court.
The first instruction granted the state is fatally erroneous. It assumes as true and proven against the defendant the pivotal point of his defense — to wit, that he had shot “at Hoyle with a gun or deadly weapon.” The theory of defense relied on by the defendant was that he did not at any time shoot “at Hoyle,” but simply fired his gun in an effort to prevent the commission of an assault and battery, which Hoyle himself conf esses he was at the time endeavoring to commit, upon the defendant.
Again, the instruction is in direct conflict with the third instruction granted the appellant, which correctly charged the jury, if they had a reasonable doubt as to whether the defendant “fired the gun at Hoyle, or fired it away from him to scare him and prevent him from catching and beating him,” .that they should then acquit. The undisputed facts of this record are that, at the time the gun was fired the first time, Hoyle, the prosecuting witness, armed with a stick, was chasing appellant with *420intent to beat or thrash, him. Under this state of case, in order to sustain a conviction of the felony charged in the indictment, it was incumbent on the state to prove, not only that the gun was fired with intent to kill Iioyle, but that it was so fired with malice aforethought, and the instructions should have been framed accordingly.
Reversed and remanded.