Commonwealth v. Malone

Facts

Malone, aged 17, and his mother lived in Lancaster with the family of William H. Long while Malone's father and brother were in the armed forces. The Longs' son, William H. Long, aged 13, was the victim. The two youths were on friendly terms. On the evening of February 26, 1945, Malone went to a movie theater carrying in his raincoat pocket a revolver he had gotten at his uncle's home the day before. In the afternoon before the shooting, Long had taken a cartridge from his father's room, and the two boys had put it in the revolver. After the theater, Malone met Long at a dairy store. Sitting in the rear of the store, Malone loaded the chamber to the right of the firing pin and closed the gun. A few minutes later, while they ate at the lunch counter, Malone suggested they play Russian poker. Long replied that he did not care. Malone placed the revolver against Long's right side and pulled the trigger three times. The third pull fatally wounded Long, who died two days later. Malone asked Long whether he had hit him and said he was sorry. At trial Malone testified that he loaded the first chamber to the right of the firing chamber, that he did not expect the gun to go off, and that he had no intention of harming Long, his friend and companion.

Issues

1. Can a defendant be convicted of second-degree murder when he intentionally places a revolver he knows holds a cartridge against another's body and pulls the trigger three times, even though he has no intent to kill and does not expect the gun to fire?
2. Did the trial judge's instructions on the presumption of malice and on accidental death give Malone grounds to reverse his second-degree murder conviction?

Holding

Malone's killing of Long was murder in the second degree. He intentionally pulled the trigger three times on a gun he knew held one bullet, aimed at a vital part of Long's body, in reckless and wanton disregard of consequences at least sixty per cent certain. That showed malice, even without motive or an intent to kill. The charge as a whole protected his rights, and its errors on accident were prejudicial only to the Commonwealth.