
    FREEMAN v. STATE.
    Ohio Supreme Court.
    No. 21060.
    Decided June 20, 1928.
    Error to Allen Appeals.
    Judgment reversed.
    803. MURDER — 225 Charge of Court — 333 Criminal Law.
    1. Where defendant, indicted for “purposely and wilfully” killing police officer, offers testimony that killing was done in scuffle and unintentionally, duty of court to charge degree of manslaughter.
    2. Comment, contained in charge, held prejudicial.
   JONES, J.

1. Where a defendant is indicted and tried for “purposely and wilfully” killing an officer under Section 12402-1, General Code, and he offers testimony tending to prove that the killing was not done purpbsely or wilfully, but in a scuffle and unintentionally, it is the duty of the court to charge a lesser degree than murder in the first degree; if such testimony tends to prove that such killing, although unintentional was caused by the defendant while resisting arrest, the court should charge the degree of manslaughter.

2. A comment in a charge, admonishing.the jury that “the shot that shoots down an' officer reverberates with the echoes of anarchy and the flame that comes from the firing of that pistol gives suggestions of chaos,” coming from the bench at the close of the trial, is prejudicial and especially so where purpose, wilfulness and intentional killing were in issue.

(Allen, Kinkade, Robinson and Matthias, JJ., concur.)  