
    Bruce Hibbler v. State of Mississippi.
    [39 South. Rep., 896.]
    1. Criminal Law. Assault with intent to murder. Shooting.
    
    In order to justify a conviction of assault with intent to murder by shooting, it must be shown, beyond a reasonable doubt, that the defendant fired the shot of his malice aforethought, not in self-defense, with the deliberate design to effect the death of the person assaulted, and that, in view of' the distance from which the gun was fired and the ammunition used, the gun was a deadly weapon.
    2. Same. Instruction. Presumption.
    
    In such case an instruction for the state is fatally erroneous if it authorizes a conviction on the belief by the jury in the existence of a mere legal presumption.
    
      F;rom the circuit court of Lafayette county.
    ' Hon. James B. Boothe, Judge.
    Hibbler, the appellant, was tried for and convicted of an assault, witb intent to murder one Monroe Patterson, and appealed to tbe supreme court.
    Tbe instruction referred to in and condemned by tbe opinion of tbe court was in these words:
    “Tbe court instructs tbe jury, for tbe state, that if they believe from tbe evidence beyond a reasonable doubt that tbe defendant witb deliberate design shot at Monroe Patterson, not in self-defense, either real or apparent, and that tbe gun at tbe distance it was fired would likely produce death, then tbe presumption of law is that he intended to kill the said Monroe Patterson, and tbe jury should find the defendant guilty as charged in tbe indictment; but if the jury believe that tbe gun was so loaded that it would not likely produce death at tbe distance it was fired, but that tbe defendant was not shooting in self-defense, either real or apparent, then tbe defendant would be guilty of assault and battery only, and tbe form of their verdict should be: ‘We, tbe jury, find tbe defendant guilty of assault and battery only.’ ”
    
      Kimbrough & Thomison, for appellant.
    Tbe instruction for tbe state undertook to charge tbe jury as to tbe presumption of law arising from tbe use of a deadly weapon, tbe effect of which was that if defendant intentionally, and not in self-defense, fired tbe gun at Patterson at a distance of fifty feet, and if tbe gun at that distance would likely produce death, then tbe presumption of law is that be intended to kill, etc., and they should find him guilty as charged. 'The jury should have been left free to consider whether tbe testimony offered by tbe accused to rebut this legal presumption, or otherwise submitted to them on tbe part of tbe state, satisfied their minds of tbe absence of such intention. Joff v. State, 37 Miss., 321. Further, this instruction ignores altogether tbe contents of the gun, when the law is that it must be proven that the gun, was so loaded as to be capable of producing death. Vaughn y-. State, 3 Smed. & IVL, 553 ; Porter v. Stale, 57 Miss., 300.
    
      B. V. Fletcher, assistant' attorney-general, for appellee.
    The objection to the charg’e given for the state rests upon the contention that it precludes the defendant from rebutting the presumption of intent to kill which the law raises by the use of a deadly weapon. But the charge, if erroneous at all, is cured by the charges given for the defendant. In these charges it is repeatedly shown that the presumption may be rebutted, and chat it is for the jury to pass upon the question of intent.
    Argued orally by D. M. Kimbrough, for ajDpellant, and by B. V. Fletcher, for appellee.
   Truly, I.,

delivered the opinion of the court.

The instruction for the'state is fatally erroneous. Tt charged the jury to return a verdict of guilty as charged if they believed in the existence of a mere legal presumption. This is not the law. To sustain a conviction of the felony charged in this case, the jury must believe from the evidence beyond a reasonable doubt that aj>pellant fired the shot of his malice aforethought, not in self-defense, with the deliberate design to effect the death of the person fired at, and that under the circumstances in evidence, the distance from which the gun was fired and the ammunition used being considered, the gun was a deadly weapon. Richardson v. State (Miss.), 28 South. Rep., 817. The instruction is defective in other particulars, but the error pointed out is fatal.

Beversed and remanded.  