Com. v. Atencio

• Decision Date: 28 March 1963
• Citation: 189 N.E.2d 223,345 Mass. 627
• Parties: COMMONWEALTH v. James F. ATENCIO. COMMONWEALTH v. James D. MARSHALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 223

189 N.E.2d 223

345 Mass. 627

COMMONWEALTH v. James F. ATENCIO.

COMMONWEALTH v. James D. MARSHALL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 4, 1963.

Decided March 28, 1963.

Alfred L. Bunai, Asst. Dist. Atty., for the Commonwealth.

Ronald J. Chisholm, Winchester, for defendants.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK, and REARDON, JJ.

WILKINS, Chief Justice.

Each defendant has been convicted upon an indictment for manslaughter in the death of Stewart E. Britch 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). ¹ The cases, which arose out of a 'game' of 'Russian roulette,' are here on appeals pursuant to G.L. c. 278, §§ 33A-33G, as amended, accompanied by a summary of the record, a transcript of the evidence, and assignments of error. The defendants argue assignments of error in the denial of motions for directed verdicts on each indictment, in the charge, and in the failure to give one of their requests for instructions.

Facts which the jury could have found are these. On Sunday, October 22, 1961, the deceased, his brother Ronald, and the defendants spent the day drinking wine in the deceased's room in a rooming house in Boston. At some time in the afternoon, with reference to nothing specific so far as the record discloses, Marshall said, 'I will settle this,' went out, and in a few minutes returned clicking a gun, from which he removed one bullet. Early in the evening Ronald left, and the conversation turned to 'Russian roulette.'

The evidence as to what happened consisted of testimony of police officers, who took statements of the defendants, and testimony of one defendant, Atencio. The evidence did not supply all the facts. For example, the source and ownership of the revolver were not made clear. The jury could have found that it was produced by the deceased and that he suggested the 'game,' or they might have found neither to be the fact. There was evidence that Marshall earlier had seen the revolver in the possession of the deceased, and that the latter handed it to Marshall, who put it in the bathroom under the sink. Later when the deceased accused him of stealing it, he brought it back from the bathroom, and gave it to the deceased. Any uncertainty is not of prime importance. The 'game' was played. The deceased and Atencio were seated on a bed, and Marshall was seated on a couch. First, Marshall examined the gun, saw that it contained one cartridge, and, after spinning it on his arm, pointed it at his head, and pulled the trigger. Nothing happened. He handed the gun to Atencio, who repeated the process, again without result. Atencio passed the gun to the deceased, who spun it, put to his head, and pulled the trigger. The cartridge exploded, and he fell over dead.

1. There is no controversy as to definition. Involuntary manslaughter may be predicated upon wanton or reckless conduct. Commonwealth v. Bouvier, 316 Mass. 489, 494, 55 N.E.2d 913, and cases cited. '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.' Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902, 910; Restatement: Torts, § 500.

We are of opinion that the defendants could properly have been found guilty of manslaughter. This is not a civil action against the defendants by the personal representative of Stewart Britch. In such a case his voluntary act, we assume, would be a bar. Here the Commonwealth had an interest that the deceased should not be killed by the wanton or reckless conduct of himself and others. State v Plaspohl, 239 Ind. 324, 327, 157 N.E.2d 579. Such conduct could be found in the concerted action and coperation of the defendants in helping to bring about the deceased's foolish act. The jury did not have to believe testimony that the defendants at the last moment tried to dissuade the deceased from doing that which they had just done themselves.

The defendants argue as if it should have been ruled, as matter of law, that there were three 'games' of solitaire and not one 'game' of 'Russian roulette.' That the defendants participated could be found to be a cuase and not a mere cndition of Stewart Britch's death. It is not correct to say that his act could not be found to have been caused by anything which Marshall and Atencio did, not that he would have died when the gun went off in his hand no matter whether they had done the same. The testimony does not require a ruling that when the deceased took the gun from Atencio it was an independent or intervening act not standing in any relation to the defendants' acts which would render what he did imputable to them. It is an oversimplification to contend that each participated in something that only one could do at a time. There could be found to be a mutual encouragement in a joint enterprise. In the abstract, there may have been no duty on the defendants to prevent the deceased from playing. But there was a duty on their part not to coperate or join with him in the 'game.' Nor, if the facts presented such a case, would we have to agree that if the deceased, and not the defendants, had played first that they could not have been found guilty of manslaughter. The defendants were...