delivered the opinion of the court.
Appellant was convicted upon an indictment charging him with murder, and was sentenced to the penitentiary for life. Defendant is a negro, and the deceased was a white, man. There were two trials of this case. The first trial resulted in a mistrial.
The evidence for the state shows that, on the day next preceding the day of the homicide, deceased and defendant had a conversation about some “confusion” (a negro term) between them, when deceased said to defendant:
“Ben, I want you to go with me to straighten up those lies that you have been telling on me. If you don’t go, somebody will get a kicking, and, Ben, you will be the man to get the kicking.”
No eyewitness testified about the homicide but it appears that deceased went to the home of defendant, armed with a loaded gun; that when he got there both parties fired on the other. The shots were fired so close together that witnesses who heard them said that they were distinguishable, but were, so nearly simultaneous that they sounded like one big gun. Deceased was shot *290in the head, and the wound was of such a character as to immediately paralyze him.
The physical facts seem to demonstrate that defendant was inside of the house when the tragedy occurred, and that deceased was on the front gallery of the house; and it seems to be the more rational conclusion that deceased fired the first shot. The interval between the two shots was appreciable, but slight.
A witness for the state testified defendant told him a day or so before the homicide that if deceased “come on him again” he would kill him. The testimony of this witness conflicted with itself, and a critical person might reasonably decline to believe anything he said.
In this state of the record, the court granted this instruction to the state, viz.:
“The court instructs the jury for the state that the law presumes malice from the deliberate and unlawful use of a deadly weapon whereby life is taken, and the. presumption of law will prevail, unless overthrown by the facts and circumstances in evidence. ’ ’
This instruction, in effect, told the jury to convict defendant, unless the facts and circumstances in evidence convinced them that the defendant did not fire the shot with malice aforethought, but in necessary self-defense. This is a case where the evidence, taken as a whole, would warrant a fair and unbiased juror in believing that deceased was the aggressor; and, this being true, the instruction should not have been given. The instruction assumes that the fatal shot was deliberately and unlawfully fired, and upon this assumed fact is built a legal presumption of guilt which defendant must overcome.
The defendant in a criminal case is never required to overcome the state’s theory; he is entitled to an acquittal if the evidence, or want of evidence, raises a reasonable doubt of his guilt.
Reversed and remcmded.
*291On motion to discharge.
Reed, J.On a former day we reversed and remanded this case. Onr reversal was based upon error of the trial court in granting an instruction. Appellant now suggests that we amend our judgment in the case so as to discharge him from further prosecution.
We think it is indicated in the statement of the case in our former opinion that appellant was justified in the homicide on the ground of self-defense. It is true that the killing in this case was with a deadly weapon, and from this, if unexplained, the jury would be warranted in inferring malice; but by. the circumstances in evidence the use of a deadly weapon was explained in this case, and it is apparent to us, from all the evidence, that appellant acted in self-defense.
Therefore, in response to the suggestion, we direct that the judgment in this case be amended so as to finally discharge appellant.