¶1The suggestion, made in argument by the Attorney General, that there was a discontinuance of the appeal, as a result of a failure to file the transcript or to take any other action on the appeal during the term in which it was returnable, is based upon the assumption that the appeal was taken at the time the defendant was sentenced- There is nothing in the record to indicate that the appeal was taken then, or at such other time as to make it returnable during a former term. The suggestion as made involves an admission that the appeal was duly taken, but is based upon a mistaken assumption as to the time when it was taken. We are not of opinion that it is subject to dismissal on the ground that there has been a discontinuance.
¶2Malice is an essential ingredient of the crime of murder. There was evidence tending to show that the killing was the result, not of a voluntary act of the defendant, but of an accidental discharge of a gun in his possession caused by the act of another in taking hold of *3and jerking it. In view of suck evidence, it was error to refuse to give charge 4, requested by the defendant.
¶3Reversed and remanded.