¶1Defendant 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.
¶2Defendant 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.
¶3Malice 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.
¶4Charge 5 was als-o properly refused. Though premeditation as well as malice is a necessary ingredient of *58murder in the first degree, the length of time the premeditation has existed before the killing is immaterial. Kilgore v. State, 124 Ala. 24. It was possible for the defendant to have framed a premeditated as well as a malicious design to kill after taking up the gun and before it was fired.
¶5No error in the record is discovered. Let the judgment be affirmed.