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At common law, the grand criterion which distinguishes murder from other killing was malice on the part of the killer and this malice is not necessarily malevolent to the deceased particularly but any evil design in general; the dictate of a wicked, depraved and malignant heart.
Defendant James J. Malone was found guilty of murder in the second degree in an action brought by the Commonwealth for the death of his friend while playing the game of Russian roulette. Malone declared that he had no intention of harming his friend. The trial court denied Malone's motion for a new trial was refused, and he was sentenced to 5 to years in prison. Malone appealed, alleging that the facts did not justify a conviction of any form of homicide due to lack of motive.
Did the lack of motive exculpate Malone from the charge of murder in the second degree?
The Supreme Court of Pennsylvania affirmed the trial court's judgment, and the record was remitted to the trial court so that the sentence imposed could be carried out. The court held that the fact that there was no motive for the homicide did not exculpate Malone. The killing was murder with malice because of the reckless disregard for the consequences of a game of Russian roulette. Malice in the sense of a wicked disposition was evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others.