¶1If Johnson’s account of the altercation be the true one, defendant committed an assault on him, when he first attempted to shoot him near Johnson’s residence. This attempt, the testimony of this witness tends to show, was made with a gun, and within shooting distance. In the absence of proof that this was done in self-defense, or under such provocation as to reduce the offense to man-slaughter, if death had ensued, this was an assault with intent to commit murder. — Allen v. The State, 52 Ala. 391; Meredith v. The State, 60 Ala. 441; DeArman v. The State, 71 Ala. 351.
¶2The testimony does not inform us what time elapsed between the first alleged assault, referred to above, and the actual shooting. It was long enough for Johnson to walk three hundred yards, hold a conversation, the duration of which is not given, and then walk some distance in a different direction. It is probable the interval was not less than fifteen minutes — possibly, much more. The second assault did not succeed the first so nearly in point of time, “as to constitute in fact but one transaction.” — Johnson v. The State, 35 Ala. 363.
¶3As there is testimony tending to show that the second assault, like the first, was made with intent to take life, they must, in the state of the proof before us, be treated as two distinct, substantive offenses, and the prosecution should have been put to its election. — Elam v. The State, 26 Ala. 48; Mayo v. The State, 30 Ala. 32; Cohchran v. The State, Ib. 542; Hughes v. The State, 35 Ala. 351; Wooster v. The State, 55 Ala. 217; Hass v. The State, 63 Ala. 108 ; Jackson v. The State, 74 Ala. 26. Some rulings may be found scarcely reconcilable with these, but our rule has prevailed too -long to be disturbed. — 1 Bish. Or. Proc., 3d Ed., § 449, and notes; Whar. Or. PL & Prac., 8th Ed., § 293, and notes. See, also, Clark’s Man. § 2218; *56People v. Rynders, 12 Wend. 425; Dowdy v. Com., 9 Grat. 727.
¶4It is not every assault with intent to kill that is an assault with intent to commit murder. There must be malice in the attempt to take human life, to constitute this statutory felony. But. when the assault is made with a deadly weapon, in sufficient proximity to inflict a deadly wound, the law implies malice from the use of such instrument, and casts on the defendant the burden of proving that the killing, or attempt to kill, was in self-defense, or, if successful, would only be manslaughter; unless such defensive facts and circumstances are shown in the testimony which proves the killing, or attempt to kill. — Hadley v. The State, 55 Ala. 31.
¶5Charges asked or given must be interpreted in the light of the testimony ; and so interpreted, neither of the charges asked by defendant should have been given. They ignored all inquiry of justification, or extenuation, and asserted, in effect, that the prosecution must make independent proof of malice, beyond that which is implied from the unexplained use of a deadly weapon. This is not the rule. There is nothing in the other questions raised.
¶6The judgment of the City Court is reversed, and the cause remanded. Let the defendant remain in custody, until discharged' by due course of law.