¶1W e do not think the doctrine of election of offenses, on which to base a claim of conviction, is raised by the facts of this case. The testimony of the witness Payne, as to the altercation and scuffle, which occured in Mollie Bernhard’s house, does not appear to have been offered for the purpose of establishing that act, as, in and of itself, a substantive offense. It was introductory to, and largely a part of, the graver offense alleged to have been committed when the defendant returned. It tended to show defendant’s purpose in returning; and whether proved before or after the testimony of the shooting was given, its tendency, in connection with the alleged threats, was to prove malice, or formed design. In fact, everything proved may be regarded as in its nature a continuous transaction, the first altercation giving color to the culminating act.—Jordan v. State, 81 Ala. 20.
¶2. It is not every assault with intent to kill, that constitutes the statutory felony, known as an assault with intent to murder. To come up to that high crime, the offender must have been influenced by malice aforethought, or, what is substantially the same thing, the offense must have been perpetrated pursuant to a formed design, and by the use of a deadly weapon, or other means ordinarily calculated to produce death. A loaded gun, discharged, or attempted to be discharged at another, within carrying distance, is a deadly weapon, and, unexplained, raises the presumption of malice aforethought. Such proof, unrebutted, authorizes the jury to convict of the felony. — Hadley v. State, 55 Ala. 31.
¶3Charges given or refused, must be interpreted in the light of the testimony. There was no testimony of provocation, or other excuse, calculated or tending to reduce the homicide to manslaughter, if death had ensued- The only defensive *20excuse offered, was, tbat the gun was discharged accidentally. Bo, if the jury believed the shots were fired intentionally at Steele, with intent to kill him, there was no testimony tending in the least to repel the imputation of malice. The testimony of what had previously taken place went to prove formed design, and it tended to prove nothing else.
¶4Charge 4, asked by defendant, was properly refused, because, under the testimony shown in this record, unrebutted and unexplained as it was, if the gun was discharged at Steele, in shooting distance, with the actual intent to kill him, it could not be affirmed, as a matter of law, that. such ascertained fact was insufficient to authorize defendant’s conviction of assault with intent to murder. And, for the same reason, the charge given at the instance of the solicitor, construed in the light of the testimony, is free from error. 3 Brick. Dig. 115.
¶5Affirmed.