Commonwealth v. Malone

CHIEF JUSTICE MAXEY. This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was Killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother, while his father and brother were in the U.S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.

On the evening of February 26, 1945, when the defendant went to a moving picture theater, he carried in the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the revolver.

After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play "Russian Poker". Long replied: "I don't care; go ahead". The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: "Oh! Oh! Oh!" and Malone said: "Did I hit you, Billy? Gee, Kid, I'm sorry." Long died from the wounds two days later.

The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not "expect to have the gun go off". He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.

Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a conviction for any form of homicide except involuntary manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the "grand criterion" which "distinguished murder from other killing" was malice on the part of the killer and this malice was not necessarily "malevolent to the deceased particularly" but "any evil design in general; the dictate of a wicked, depraved and malignant heart": 4 Blackstone 199. Among the examples that Blackstone cites of murder is "coolly discharging a gun among a multitude of people", causing the death of someone of the multitude.

In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the intention to kill: Commonwealth v. Divomte. . . . When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that "wickedness of disposition; hardness of heart; cruelty; recklessness of consequences and a mind regardless of social duty" which proved that there was at that time in him "that state or frame of mind termed malice". Commonwealth v. Drum. . . . This court has declared that if a driver "wantonly, recklessly and in disregard of consequences" hurls "his car against another or into a crowd" and death results from that act "he ought to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun": Commonwealth v. Mayberry . . ., citing cases from four jurisdictions. . . .

In Commonwealth v. Knox, . . . the following instructions by the trial judge in a murder case was held by this court not to be error: "When a man uses a gun loaded with powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow." . . .

. . . Death may be accidental though it resulted from a malicious act intentionally committed. In such a case the means were not accidental; the result was. In the instant case if the defendant had by some negligent, unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act and and death might be correctly characterized as accidental. But when the defendant knowing that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver to the side of Long and pulled the trigger three times, his act cannot be characterized as accidental, even if his statement that he had no intention to kill Long is accepted (as the jury accepted it). . . .

The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary. . . .

[T]he judgment is affirmed. . . .