March 30, 2020

Commonwealth v. Malone - 354 Pa. 180, 47 A.2d 445 (1946)

FACTS: D got a gun and took it along when he went to the movie theater. D placed one bullet in the gun and shen the 2 went to a restaurant they decided to play Russian Roulette. The D put gun next to the decedent's head and on the 3rd pull of the trigger the gun went off.

HISTORY: Judgement and sentence under a conviction of murder in the 2nd degree.

ISSUE: Did the facts justify a conviction for any type of murder?

HOLDING: Yes

RATIONALE: Malice is what distinguishes murder from manslaughter. Malice doesn't have to be "malevolent to the deceased particularly" but "any civil design in general; the dictate of a wicked, depraved and malignant heart." The gross recklessness of the reasonable anticipation the gun could go off exhibits that "wickedness" characteristic of malice. 

DISPOSITION: Assignments of error are overruled and the judgement is affirmed.