For the reasons given in division 4 of the opinion, the trial court erred in denying the defendant's motion for new trial.

ARGUED APRIL 14, 1958 — DECIDED MAY 7, 1958.

Austin Ayers was convicted of the murder of Marshall Posey and recommended to mercy. His motion for new trial on the general grounds and four special grounds was denied, and he excepts.

The evidence shows substantially the following facts: Talmadge Womack and Luther Mason were fishing at a river in Haralson County. They had parked Mason's car in a side road close to a bridge over the river. When they tried to leave, the car would not start. Womack walked up the road towards Ayers' house a short distance away. He met Posey on the road and both walked to Ayers' house. Ayers was sitting in his truck in the yard. Womack asked Ayers to push the car off. Ayers stuck a rifle out of his truck door and commanded Womack to leave. As Womack was walking back to the stalled car, Ayers and Posey overtook him, Posey driving Ayers' truck. Womack swung on the truck and they proceeded to the stalled car. The car was started, and Posey, Womack, and Mason talked for a few minutes as they stood in the road near the car. Another car, driven by Flynn Cook, came along, and Womack and Mason began pushing Womack's car to get it started again and clear the road so the other car could pass. Posey began walking towards Ayers' truck. Ayers had remained sitting in the truck all the while. As Womack and Mason were pushing and starting their car, they heard something like a gun fire two or three times. They looked back and saw Posey walking towards their car, holding his arm. Mason got out of his car and went to Posey, who said "I am shot." As Mason was helping Posey in the car, Ayers got out of his truck with a rifle and started shooting towards Mason's car. Womack slid under the wheel and Mason ran around in front of the car, using the car as a shield, while Womack drove off. They continued in this manner until they rounded a curve, when Mason jumped inside. Mason and Womack then carried Posey to a doctor.

Flynn Cook testified: that he drove upon the scene and was waiting for the Mason car to move so that he could pass. He watched Posey walk towards Ayers' truck, and as he started to get in, the witness heard several sounds like a cap pistol. The witness did not know what had happened until Posey turned away from the truck and started walking back in the witness's direction, and said, "I am shot." Cook corroborated the testimony of Womack and Mason as to how they put Posey in the car, and he testified that, after the Mason car had left. Ayers, who had gotten out of the truck, began shooting in Cook's direction. Cook told a passenger in his car to get out and start running, which they both did. As Cook was running through the woods he heard more shots, and was himself shot through the arm.

There was evidence that Marshall Posey, after he was shot, said that he was going to die and that the defendant had shot him without any cause. There was no evidence that the defendant and the deceased had had any argument or disturbance whatever before the shooting.

MOBLEY, Justice.

1. As to the general grounds, counsel for the defendant contends that the State failed to establish the corpus delicti and rely upon Warren v. State, 153 Ga. 354 (2) ( 112 S.E. 283), where it was said: "To sustain a conviction in a case of homicide, it is essential to prove the corpus delicti; that is, first, that the person alleged in the indictment to have been killed is actually dead, and second, that the death was caused or accomplished by violence, or other direct criminal agency of some other human being, that is, it was not accidental, nor due to natural causes, nor to the act of the deceased; and that the accused caused the death by one or more of the means charged." Counsel admits that the death of the deceased was sufficiently shown, but contends that it was not proved that the defendant intentionally killed the deceased in the manner alleged. The indictment charged that the defendant did, with malice aforethought, murder the deceased by shooting him with a rifle and gun. There was evidence that the deceased was shot three times with a .22 caliber weapon, from which wounds he died. While in every trial for murder it is essential to a conviction that malice, express or implied, be shown ( McMillan v. State, 35 Ga. 54), yet "Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart." Code § 26-1004. And it is a well-settled principle of law that a presumption of an intention to kill arises from the use of a weapon that, in the usual and natural manner in which it was used on the occasion in question, was a weapon likely to produce death. Hanvey v. State, 68 Ga. 612(4). There is evidence that the deceased was shot three times, and as far as may be determined such shooting was wholly unexpected, without warning, and without provocation. After shooting the deceased, the defendant got out of his truck and opened fire upon those who were trying to give aid to the deceased. When these had left the scene, the defendant turned his gun on two innocent bystanders, and as they fled, shot one of them through the arm. In our opinion, this evidence in the record is amply sufficient to establish the ingredient of malice. The elements of the corpus delicti may be shown by circumstantial as well as direct evidence. Jester v. State, 193 Ga. 202, 208 ( 17 S.E.2d 736), and cits.; Wright v. State, 199 Ga. 576(1) ( 34 S.E.2d 879). The evidence supports the verdict, and the general grounds are without merit.

2. Special grounds one and two, excepting to the introduction in evidence of a .22 rifle and a photograph of the inside of the Mason car, are without merit.

3. Special ground three, excepting to the court's charge on the law of murder, is but an amplification of the contentions made upon the general grounds, and this ground is without merit.

4. In special ground four, error is assigned upon the following excerpt from the charge: "If a person is killed by another, as charged in the indictment, by an instrument in the manner in which it was used was one likely to produce death, and at the time of the killing there were no circumstances such as to excite the fears of a reasonable man that he was in danger from the deceased, under the instructions I have given you and shall give you, then the law would imply malice on the part of the defendant, and you would be authorized to find the defendant guilty as charged in this bill of indictment." It is contended that this charge, under the evidence and the defendant's statement, was confusing and misleading to the jury, not adjusted to the evidence, and that said charge instructed the jury that, if the defendant shot the deceased without being in fear of danger, then they would be authorized to convict, whether the shooting was accidental or not. The charge excepted to is not a correct statement of the law as applied to the facts of this particular case, since the only defense relied upon by the defendant was that of accident. Code § 26-404 declares that "A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect." The principle of implied malice from the use of a deadly weapon was well stated in Smith v. State, 203 Ga. 317, 324 ( 46 S.E.2d 583), as follows: "This court has repeatedly held that where a killing with a deadly weapon is proved to be the act of the defendant, the presumption of innocence is removed and the burden is then upon the defendant to justify or mitigate the homicide, unless the evidence offered by the State shows justification or mitigation. Vann v. State, 83 Ga. 44 ( 9 S.E. 945); Lewis v. State, 90 Ga. 95 ( 15 S.E. 697); Dorsey v. State, 110 Ga. 333 ( 35 S.E. 651); Williford v. State, 121 Ga. 173 ( 48 S.E. 962)." The presumption of malice arising from the use of a deadly weapon may be overcome not only by proof of circumstances of justification, but also by proof of accident or proof of a lower grade of homicide ( Lewis v. State, 90 Ga. 95, supra); and where, as here, the evidence for the State shows a killing by the use of a deadly weapon and the defendant's sole defense is that of accident, it is error to instruct the jury in effect that they would be authorized to imply malice from the use of such weapon and to convict the defendant unless it be shown that he acted under the fears of a reasonable man that he was in danger from the deceased. Under the evidence in this record, such charge eliminated the defendant's defense, and while the judge later charged upon accident as a defense, he nowhere corrected his previous erroneous charge. Whether the defendant had overcome the presumption of malice raised by the State's evidence was a material issue in the case, and it was error for the court to restrict the jury in its decision upon this matter to a question whether the defendant was acting under the fears of a reasonable man, or in other words, authorize a conviction if the jury found that he was not so acting. The charge upon this principle being erroneous and upon a material issue in the case, the error was not rendered harmless by a subsequent correct charge on the law of accident as a defense to the crime charged. Citizens Southern Nat. Bank v. Kontz, 185 Ga. 131 (2) ( 194 S.E. 536); Bryant v. State, 191 Ga. 686, 719 ( 13 S.E.2d 820); Western Atlantic R. Co. v. Clark, 117 Ga. 548(2) (44 S.E. 1). The charge excepted to in this ground was error and harmful to the defendant, and the trial court erred in overruling this ground of the motion for new trial, and erred in refusing a new trial. Judgment reversed. All the Justices concur, except Candler, J., who dissents.