Commonwealth v. Malone

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Facts: Malone, 17, was friends with the decedent, 13. Malone took a revolver from his uncle's house the day before the shooting. They sitting around in the back lot of a dairy store when Malone suggested they play "Russian poker." The decedent agreed. Malone put the revolver to the side of the decedent and pulled the trigger three times. The third time, the gun went off and mortally wounded his friend.

Procedural History: Charged with 2nd degree murder. Convicted and sentenced to 5 to 10 yrs. Appealed.

Issue: Should the defendant have been charged with involuntary manslaughter?

Arguments: D said that had no intention of harming his friend.

Holding: Second degree murder is proper.

Reasons: An essential ingredient of 2nd degree murder is a specific intent to take life. "Malice" does not necessarily mean "malevolence." D intentionally did the act in "reckless and wanton disregard of the consequences which were at least sixty percent certain. . ."

Judgment: Affirmed.