(dissenting).
I am of the opinion that appellant should not be discharged, but that the case should be submitted to a jury under proper instructions. I do not think it can be said, as a matter of law, that the sidelights upon the killing, referred to in our former opinion, explained its character. All that can be said relative thereto is that from them the jury would be warranted in entertaining a reasonable doubt as to whether the killing was malicious. The unexplained killing of a human being, with or without a deadly weapon, under all of our authorities, is presumed to be murder. Whether or not a deadly weapon was used is material only when the attendant circumstances are in evidence, and from them no express malice appears, in which event malice may be inferred from the use of a deadly weapon. McDaniel v. *292State, 8 Smedes & M. 401, 47 Am. Dec. 93; Green v. State, 28 Miss. 687; Hague v. State, 34 Miss. 616; Jeff v. State, 39 Miss. 593; Head v. State, 44 Miss. 731; Hawthorne v. State, 58 Miss. 778; Lamar v. State 63 Miss. 265.