128 Ala. 54 | Ala. | 1900
Defendant was tried on a charge of murder based upon the undisputed- 'fact [that immediately on coming down stairs from the upper room of a store with >a gun in his hand, the gun was fired and killed the -deceased who- ivas standing in front of the store handling a pistol and having an altercation either playful or belligerent with one Means, the proprietor of the store, who also was handling a pistol. Defendant by his evidence admitted that the gun fired while in his hands, but claimed the firing was accidental.
Defendant made -objections to questions addressed to certain witnesses for the State and to answers thereto, as to what took place between deceased and Means while they -were so engaged and before the defendant came down. Of these several objections it is sufficient to say they were not well taken because from the bill of exceptions it -appears there was evidence tending to show that at the -time -of the happening -of the things s-o inquired and testified about the defendant, -though up stairs, was at a place where he could both hear and see what was going on. This-, if true, was sufficient to malee the altercation occurring just before the defendant came down a part of the res gestae, if it could not otherwise have been -so regarded. — Wood v. State, ante, p. 27.
Malice may arise -on the instant, and from the use of a deadly weapon whereby one intentionally takes the life of another the law raises -a prima facie presumption [that the killing was done maliciously unless the circumstances of the killing disprove malice. — Hornsby v. State, 94 Ala. 55; Miller v. State, 107 Ala. 40. Whether the killing involved in the present case was intentional and if so whether it was malicious and, -therefore, -murder were under the circumstances in evidence questions for [the jury, and this made proper the refusal of -charge 2.
Charge 5 was als-o properly refused. Though premeditation as well as malice is a necessary ingredient of
No error in the record is discovered. Let the judgment be affirmed.
