Hamby v. State

FOSTER, Justice.

It is true that generally a killing by the intentional use of a deadly weapon carries a presumption of malice and of unlawfulness, but not so if the evidence which proves the killing rebuts the presumption. Hadley v. State, 55 Ala. 31; Hornsby v. State, 94 Ala. 55, 10 So. 522; Cooley v. State, 233 Ala. 407, 171 So. 725; McDowell v. State, 238 Ala. 482, 483, 191 So. 894.

We think in this case that the evidence which proves the killing rebuts the presumption of malice, not justifying a conviction of murder in the second degree as found by the jury.

The only eyewitnesses were…