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The crime of murder in the second degree includes every element which enters into murder of the first degree except the intention to kill. Premeditation is essential as in other cases of murder. It is apparent, therefore, that malice is a necessary element of the crime of murder of the second degree, and, as a result, it is rarely that the facts in a motor vehicle accident will sustain a charge of murder. The element of malice is usually missing. There must be a consciousness of peril or probable peril to human life imputed to the operator of a car before he can be held for murder.
Defendant Cletus McLaughlin was driving his father’s automobile about half past ten in the evening along Northampton Street in Wilkes-Barre Township in the County of Luzerne, progressing down grade at the rate of twenty or twenty-five miles per hour. Frank Ravitt, who was pushing a baby coach, and his wife, were walking in the cartway of the street ahead of and in the same direction as the automobile. Ravitt and his wife’s presence were within the street limits and not on the sidewalk due to the pavement’s bad condition. Defendant struck the group in the cartway, killing the husband and the baby and seriously injuring the wife. The jury found defendant guilty of murder of the second degree. On appeal, defendant argued that the evidence did not support his conviction.
Did the evidence support defendant’s conviction for second-degree murder?
The court agreed with the defendant and reversed the latter’s conviction. The court explained that the crime of murder in the second degree included every element that entered into murder in the first decree except the intention to kill. As such, the court reasoned that malice was a necessary element of the crime of murder in the second decree. The court concluded that evidence that defendant did not see the man, his wife, and his infant child walking down the road in time to avoid striking them, negated any specific intent on the part of defendant to injure them. Without an intention to strike the family or a reckless disregard for their safety, neither of which was established by the testimony, the court opined that defendant could not legally be convicted of murder. The court did note, however, that the Commonwealth had the right to charge defendant with the crime of involuntary manslaughter.