Russian Poker Murder

The Accidental Kill: An Analysis of “Russian Poker”
On the night of February 26th, 1945, an allegedly innocent game of Russian Poker turned deadly when defendant Malone, 17, shot and killed William H. Long, 13. At the time of Long’s death, Malone and his mother were living with the Long family. The boys, according to witnesses, were on friendly terms. The gun involved belonged to Malone’s uncle – the teen had taken it the day before the incident. Oddly enough, Long obtained the bullet that would eventually kill him from his father’s room that afternoon. The two boys loaded the gun together and Malone tucked the deadly weapon away in his pocket (Behrens 184-85).
After carrying the weapon around in his jacket pocket all afternoon, the defendant and Long met at a dairy store to eat. While in the store, Malone reloaded the revolver, this time placing the bullet in the chamber to the very right of the firing pin. While the two boys sat at the bar top of the dairy store, Malone asked the decedent if he was up for a game of Russian Poker. According to Malone, Long shrugged indifferently. Taking that as a yes, Malone cocked the revolver,

pressed it to the decedent’s right side and fired (Behrens 185). When nothing happened, Malone fired once again. On the third cock and pull, the gun went off, fatally wounding Long. Malone cried out in surprise as his friend collapsed to the floor. Two days later, William H. Long died at the age of 13. While on trial, the defendant claimed that he had not meant to shoot his young friend. He explained that he had loaded the bullet into the farthest chamber and did not expect the gun to actually fire. Despite his testimony, Malone was convicted of murder in the second degree and sentenced with jail time no less than five years but not exceeding 10 years. After the trial, an appeal was taken (Behrens 185).
When examining the case to judge degree of guilt, the reader must decide whether or not there was malice aforethought involved in the killing. Malice aforethought, as defined by the Jury Instructions in Making the Case: An Argument Reader, requires, “an intention unlawfully to kill a human being” (Behrens “Jury” 189). Following this definition, there is a list of instances in which malice can be decidedly implied:
1. The killing resulted from an intentional act,
2. The natural consequences of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. (Behrens “Jury” 189)
Also worthy of noting, the “Jury Instructions” includes that malice aforethought “does not necessarily require any ill will or hatred of the person killed” (Behrens “Jury” 190). If all these criteria can be met, the defendant should be charged with second degree murder, which is defined as, “the unlawful killing of a human being with malice aforethought…but the evidence is insufficient to prove deliberation and premeditation” (Behrens “Jury” 190). When examining the case, it is clear that all three qualifications for assuming malice aforethought can be met. This being said, one can rightfully charge the defendant with second degree murder in the killing of minor William H. Long.
To prove that sufficient evidence is present to charge the defendant with murder in the second degree, one can break down the definition of implied malice aforethought and meet each criteria piece by piece. As stated in the “Jury Instructions,” malice aforethought can be rightly assumed if, “The killing resulted from an intentional act” (Behrens “Jury” 189). Malone willingly obtained the gun from his uncle, carried the weapon with him throughout the day, loaded the gun with a live round, and pulled the trigger three times before shooting and killing Long. All evidence points to the fact that Malone intended to play Russian Poker with his friend, and that Malone intended to pull the trigger of the gun – not once, but three times. One might argue that the intent to pull the trigger does not equate to the intent to kill, which leads the reader directly into the second criteria of implied malice aforethought.
As stated, malice aforethought can be presumed if, “The natural consequences of the act are dangerous to human life” (Behrens “Jury” 189).

Obviously, the defendant knew enough about guns to know how to load one and how to fire one. Taking this into account, it is right to assume that Malone knew that the natural consequences of firing a gun are injury or death. A gun is a lethal weapon, and anyone handling one should assume that the consequences of firing one at or in the direction of a person are often lethal. His handling and obvious knowledge of the weapon leads the reader to believe that Malone understood that the “natural consequences of the act are dangerous to human life” (Behrens “Jury” 189). The fact that the human life directly harmed by the act was supposedly Malone’s friend does nothing to negate the seriousness of the

crime.
Having sufficiently met the previous two criteria for assumed malice aforethought, the third criterion is easily reached. As stated, malice aforethought is clear if, “The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life” (Behrens “Jury” 189). Malone very clearly knew that he was holding a gun loaded with a live round to the side of his friend. Even if he thought he was not going to actually shoot his friend, he deliberately held a lethal weapon to Long’s side. He consciously disregarded the obvious danger involved in playing Russian Poker and ended up taking a human life. Even though he meant no harm to his friend, all criteria for malice aforethought can be sufficiently met with the evidence available to the reader. On the other hand, deliberation and premeditation cannot be proved, therefore indicating that Malone should be charged with murder in the second degree.
Though some evidence may point to the fact that the defendant is merely guilty of involuntary manslaughter, as explained, all criteria for malice aforethought can be sufficiently met, and this clearly indicates that the defendant is guilty of second degree murder. Despite the fact that the defendant and decedent were friends and there appears to be no sudden quarrel or ulterior motive driving the killing, Malone knowingly fired a lethal weapon without thought of the consequences, and this intentional act resulted in the death of a child.
This instance of supposedly “unintentional” gun violence in the late 1940’s is a clear precursor to the types of crimes modern Americans experience almost daily. The argument that “guns don’t kill people, people kill people” is intrinsically flawed. Yes, people pull the trigger, but without the ready access to and availability of guns, there would be no triggers to pull. With a stricter set of gun laws and the decreased availability of these lethal weapons, “accidental” gun violence would surely see a sharp drop and everyone would be safer.