¶1The opinion of the court was delivered by
¶2Appellant insists that' the trial court committed material and prejudicial error in giving the foregoing instructions. The special vice of instruction No. 10 is its last sentence, which reads: “Proof of an unjustifiable killing is sufficient evidence of malice.” Objection is made to several clauses of instruction No. 11, the principal one being where the court says: “A killing with malice can not be manslaughter.” Several other similar expressions, however, occur in the instruction. It is contended that these instructions, taken together, precluded the jury from finding a verdict of manslaughter in any degree. If “proof of an unjustifiable killing is sufficient evidence of malice,” then, unless the defendant can be acquitted on the ground that the homicide was justifiable, he must be found guilty of murder, because “a killing with malice can not be manslaughter,” and malice exists where the killing can not be justified. We agree with the appellant. The circumstances here shown make the question of malice material and important. The provocation given immediately preceding the fatal shot was serious, and under the law given in instruction No. 11 the jury might well have found that the shooting was done under the influence of passion, rather than malice, if this question had not been taken from them by instruction *183No. 10. The question of malice in such a case is one of fact, and should be submitted to the jury. Had it been so submitted, the jury would have been amply justified in finding the defendant guilty of manslaughter instead of murder.
¶3Many cases hold that where it is shown that a homicide is committed with a deadly weapon, and no other facts appear, the law will presume malice, and the court may so declare, but the rule is generally held to be otherwise where all the circumstances surrounding the killing are shown, and especially where, as in this case, the killing follows immediately after the accused has received a brutal and violent assault. The authorities are collected upon this subject in volume 21 of the Cyclopedia of Law and Procedure, at page 877.
¶4Instruction No. 20 does not seem subject to serious criticism. When instructions numbered 21 and 22 are read in connection therewith, the law seems to be very fully and clearly stated. In fact, the instructions, taken as a whole, seem to be full, fair, and ably prepared; but the words to which objection is made are too important and serious to be overlooked. We think the appellant is entitled to a new trial.
¶5The judgment is reversed, with directions to grant a new trial.