¶1(dissenting).
¶2The majority opinion correctly states the rule that malice may be presumed from the use of a deadly weapon unless the evidence which proves the killing rebuts the presumption. I believe however it is for the jury to decide whether this presumption, has been rebutted. Eiland v. State, 52 Ala. 322; Compton v. State, 110 Ala. 24, 20 So. 119.
¶3The trial judge properly charged the jury on the effect of the above rule and the jury obviously saw fit to presume malice from the use of the deadly weapon. This court has concluded as a matter of law that the facts which proved the killing conclusively rebutted the presumption of malice.
¶4The only theories which could possibly be advanced from the evidence which tended to rebut this presumption would be either that the defendant was too intoxicated to entertain malice or that the shooting-was an accident.
¶5It was not shown appellant was so intoxicated that he could not entertain malice when the killing occurred. The evidence only shows that appellant was drinking with the deceased and another man prior to the shooting which occurred about 8:30 P.M. and that appellant was found passed out about 10:00 P.M. What happened during the approximately ninety minutes between the shooting and appellant’s being found passed out is not shown.
¶6The State’s witness testified it was unlikely the weapon used to kill the deceased could have been fired accidentally as appellant contended in his statement. There-was evidence from photographs of the body and testimony of the state toxicologist that the deceased was shot twice — once in the chest and once in the left hip or buttock area. There was also testimony that four or five spent cartridge shells were found at the scene. It is unlikely that one could be accidentally shot in such a manner.
¶7Therefore, neither theory conclusively rebutts the presumption of malice.
¶8*512In my judgment a jury question was presented and I would not disturb the lower court’s ruling.