
    The State v. Phelps, Appellant.
    
    Murder. An instruction that if the defendant maliciously shot and killed deceased with a rifle, the law presumes the killing to be murder in the second degree unless it is shown to have been justifiable on the ground of self-defense or within some other degree of homicide, Held, error.
    
      
      Appeal from Osage Circuit Court.—IIon. A. J. Seay, Judge.
    Reversed.
    
      Belch & Silver for appellant.
    
      D. H. McIntyre, Attorney General, for the State.
   Per Curiam.

The defendant was indicted for murder in the first degree for the killing of one William Jett, and was convicted of murder in the second degree. The court instructed the jury that if the defendant maliciously shot and killed Wm. Jett on the 7th day of February, 1873, with a rifle-gun, the law presumes such killing to be murder in the second degree, unless it appears from the evidence such killing was justifiable on the ground of self-defense, or within some other degree of homicide. This instruction is not in harmony with the decisions of this court'in State v. Curtis, 70 Mo. 594; State v. Harris, 73 Mo. 287, and State v. Robinson, 73 Mo. 306, and the judgment of the circuit court will, therefore, be reversed and the cause remanded.  