Opinion.

The fourth instruction given for the State is subject to the criticism that by it the jury is told that presumption of malice arising from the use of a deadly weapon must prevail, unless from other evidence it is shown to the satisfaction of the jury that the killing was not malicious. A defendant is entitled to an acquittal if, on all the testimony, the jury has a reasonable doubt of the malice requisite to constitute murder. It is not true that on the evidence the jury must he satisfied that malice does not exist; it is its duty under the law to acquire if it is not satisfied that it does exist. The very liberal instructions, however, given for the defendant undoubtedly called the attention of the jury to the fact that the real *126meaning of the instruction as granted was tbat, in the absence of other evidence negativing the malice presumed from the use of a deadly weapon, the presumption was sufficient to warrant a conviction.

The judgment is affirmed.