Commonwealth v. Atencio - 345 Mass. 627, 189 N.E.2d 223 (1963)

Rule:

The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.

Facts:

Each defendant has been convicted upon an indictment for manslaughter in the death of Stewart E. Britch, resulting from a death during a “game” of Russian roulette, and upon an indictment for illegally carrying a firearm, namely a revolver, on his person in violation of G. L. c. 269, § 10 (as amended through St. 1957, c. 688, § 23). The defendants appealed their convictions, arguing that the trial court erred in denying their motions for directed verdicts, and in failing to give a requested instruction that jurors could find defendants not guilty if they found that defendants urged the victim not to pull the trigger.

Issue:

Should the defendants’ convictions be upheld? 

Answer:

Yes, with respect to the manslaughter conviction. No, with respect to the conviction for illegal possession of a gun.

Conclusion:

The appellate court affirmed the manslaughter conviction, but reversed the conviction for illegal possession of a gun. The court held that the trial court gave the requested instruction in substance, and the jury properly found defendants guilty because their wanton or reckless conduct in initiating the game brought about the victim's foolish act. The court, however, held defendants' temporary possession of a gun during the game was not an illegal carrying within the meaning of state statute.