Opinion
5 Div. 453.
June 10, 1948. Rehearing Denied June 30, 1948.
Jacob A Walker and R. C. Smith, both of Opelika, for petitioner.
A. A. Carmichael, Atty. Gen., and Richard S. Brooks, Asst. Atty. Gen., opposed.
Petition of Charles Baker for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Baker v. State, 33 Ala. App. 596, 36 So.2d 239, wherein a judgment of conviction of assault with intent to murder was affirmed.
Writ denied.
GARDNER, C. J., and BROWN, and LIVINGSTON, JJ., concur.
On Rehearing
We denied certiorari because, under the limited review in such cases, we accept the findings of facts by the Court of Appeals as disclosed in its opinions.
In the instant case there is a clear finding by that court that, from the facts proving the offense, no inference was deducible that defendant acted in self-defense or that his act in shooting the prosecuting witness was the result of sudden passion engendered by sufficient provocation and without malice.
There was, therefore, no duty on the trial judge to add to the charge to the jury that "malice is presumed from the use of a deadly weapon" the qualifying phrase unless the circumstances of the killing disprove malice. McDowell v. State, 238 Ala. 482, 486, 191 So. 894; Hornsby v. State, 94 Ala. 55, 66, 10 So. 522, 526; Simpson v. State, 31 Ala. App. 150, 13 So.2d 437.
The application for rehearing must, therefore be overruled.
Rehearing denied.
GARDNER, C. J., and BROWN, and LIVINGSTON, JJ., concur.