47 A.2d 445 (Pa. 1946)
On February 26, 1945, seventeen-year-old defendant William Malone and thirteen-year-old William H. Long were friends living together in Lancaster, Pennsylvania, along with the defendant's mother, while the defendant's father and brother served in the U.S. Armed Forces.1 Earlier that day, Long obtained a cartridge from his father's room, and the two youths placed it in a 32-caliber revolver that Malone had obtained from his uncle's home the preceding day.2 That evening, after attending a moving picture theater, Malone met Long at a dairy store where they sat together for ten minutes.3
During their time at the store, Malone removed the revolver from his raincoat pocket, loaded the chamber to the right of the firing pin, and closed the gun. The youths then moved to stools at the lunch counter and ate some food.4 Malone suggested they play a game called Russian Poker, to which Long replied that he did not care and to go ahead. Malone then placed the revolver against the right side of Long's body and pulled the trigger three times.5
The third pull of the trigger discharged the weapon, inflicting a fatal wound. Long jumped off the stool and cried out, while Malone expressed surprise and apologized, asking if he had hit him. Long died from the wound two days later.6 Malone testified that he had loaded the chamber next to the firing chamber and did not expect the gun to discharge when he pulled the trigger, stating he had no intention of harming his friend.7
Malone was indicted for murder, tried before a jury, and convicted of murder in the second degree. The trial court sentenced him to a term of imprisonment of not less than five years nor more than ten years in the penitentiary. Following the denial of a new trial, Malone appealed the judgment and sentence to the Supreme Court of Pennsylvania.8
Whether the facts justified a conviction for any form of homicide except involuntary manslaughter?9
Pennsylvania law divides the common law crime of murder into two degrees, with murder of the second degree encompassing every element of first degree murder except the specific intention to kill.10 Malice, the distinguishing criterion from other killings, is not limited to malevolence toward the deceased but includes any evil design or wicked, depraved, and malignant heart, which may be shown by gross recklessness where the actor must reasonably anticipate that death to another is likely to result.11
Yes. In the established facts, the defendant Malone loaded a cartridge into the revolver, suggested playing Russian poker to Long, placed the revolver against Long's right side, and pulled the trigger three times, with the third pull discharging the weapon and causing the fatal wound two days later.12 This conduct exhibited the recklessness of consequences and disregard of social duty that the law terms malice.13 The defendant knew the gun had at least one loaded cartridge and aimed it at a vital part of his companion's body.
This made the killing murder in the second degree rather than mere involuntary manslaughter arising from an inadvertent or negligent act.
The facts justified a conviction for murder in the second degree.14
Whether the trial court's charge to the jury contained errors warranting reversal of the judgment and sentence?15
It is the primary duty of the trial judge to clarify the issues in charging the jury so that the jury may comprehend the questions they are to decide.16 Errors in the charge warrant reversal only if they prejudice the defendant, but if the charge as a whole protects the defendant's rights and any misstatements are not misleading in context, the judgment will be affirmed.17
No. The established facts of the trial show that while the charge included statements that could have misled the jury, such as presuming malice from any unlawful homicide and suggesting that an accidental death precluded conviction.18 The charge correctly noted that the presumption of malice does not arise until a prima facie case of felonious homicide is made.19 The jury returned a verdict of second degree murder.20 This indicated that the defendant's rights were fully protected by the charge in its totality without prejudice warranting reversal.21
The trial court's charge to the jury did not contain errors warranting reversal of the judgment and sentence.22