delivered the opinion of the court.

On this indictment for and conviction of assault and battery with intent to kill and murder our minds do not repose securely in the belief that there was either a purpose to kill, or that there was malice in the assault, or that the blow was not in self-defense. Erom the lightness of the sentence we think the accomplished and able circuit judge was himself not thoroughly at ease on these questions on the evidence. In this sort of a case, we think it was improper to give the state’s first instruction, that in effect authorizes conviction “as charged,” even if the blow was struck with the single-barreled shotgun without malice; and in the very next charge is given the abstract legal proposition that “the law presumes malice from the *248unlawful and. deliberate use of a deadly weapon.” The jury might infer from the two that the learned judge thought there was the unlawful and deliberate use of that gun as a deadly weapon, loaded though it was, and not used to shoot, as it might have been.

It is clear that the party struck went to appellant’s house and began the trouble. Tie was the only witness of the fact for the state, and is contradicted by appellant and his wife, and she says without contradiction, that she took the hatchet to the house of the party assaulted, with which hatchet both say he was about to strike appellant when the latter struck. Both swear that Dade Edwards first started towards accused with a large knife, which he put in his pocket, and then took the hatchet. Certainly the knife was in the pocket of his “jumper” coat, and it is not easy to see how they could have known it, unless they had seen it. The testimony of the as-’ saulted man has marks of improbability. In any event, the case required particularity in charges, so as not to mislead.

It was highly improper for the- state to show the good character of Dade Edwards, the party assaulted, when no attack was made on it.

Each case must be governed by its own facts, and they gauge the propriety of decisions. This is reversed and remanded.

Reversed and remanded.