delivered the opinion of the court.

It was error to refuse instructions Nos. 1 and 2 asked by the defense. Every person charged with murder is entitled to have the jury pass on whether the killing was done willfully, féloni*828ously, and of his malice aforethought. On certain facts, the law sometimes presumes malice, but these facts must exist to supply the presumption, and the jury alone can determine the existence of these facts. The state may explain these, if it chooses, in counter charges, but the accused is none the less entitled to the ■instruction that malice aforethought must exist.

Reversed and remanded.