Taitón Macon was convicted of the charge of murder in the second degree in the Hamilton Common Pleas. Error- proceedings were instituted and on hearing the Court of Appeals affirmed the judgment and sentence.

As was shown by the evidence, Macon was 29 years of age and was employed as a brick-layer upon his discharge from the army. Charles Allen, the deceased, and Macon were friends of over ten years standing. Upon the date of the' homicide Macon had returned from work because of his inability to lay bricks due to the intense cold. He proceeded over to his mother’s house to repair a frozen water pipe and perceived Allen there to whom he gave a friendly greeting.

Allen then offered to sell Macon a gun, but which Macon refused to purchase because it had no magazine. Macon, who had the gun in his hand, returned it to Allen,- and in the exchange it exploded whereby Allen was shot. Macon became frightened and rushed from the scene -exclaiming to a family which lived not far that he and Allen were friends and he had no intention of harming him. Macon, upon being advised of Allen’s death, left Cincinnati and obtained work in Cleveland, where he was apprehended, arrested and returned to Cincinnati.

A motion was filed in the Supreme Court for leave to file a petition- in error. Upon said motion it is contended by Macon that the court erred in its charge to the jury and that there were errors of law in the admission and rejection of evidence at the trial.

It -is claimed that the Court in its charges in regards to manslaughter laid down two different and inconsistent rules. That, on one hand, the jury were told that they might find Macon guilty of manslaughter though they find the homicide was . committed either with or without malice and, on the other hand, under the same set of facts and like circumstances they were charged that before they could return a verdict of manslaughter they must find beyond a reasonable doubt that “the gun was pointed, aimed or discharged without malice.”

It is claimed that court’s charge, “If you find therefore, that Charles Allen was killed and it was not done in self defense, but in a sudden passion or heat of blood, then malice may be inferred,” was erroneous and prejudicial because the jury were instructed that if the killing was not done in self defense, malice should be inferred.

It is contended that the attitude of the court during the course of the trial as to the admission and rejection of certain evidence, was most favorable to the state and prejudicial to Macon. It is claimed that the state in failing to get a privileged communication between Macon and his wife to the jury, attempted to argue and infer the guilt of Macon because of his counsel’s objection to such questions for lawful reasons.