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.