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Is the “substantiality” of the risk, or the recklessness of an act quantifiable? Consider Comm. v. Malone, 354 Pa. 180 (1946). Defendant, a juvenile, put one bullet in a five-chamber gun. According to his testimony, he did not expect the bullet to discharge until the fifth pull of the trigger. He then “pretended” to play Russian roulette with Billie, his 13-year-old friend. There was no evidence that he spun the chamber. On the third pull of the trigger the gun fired, killing Billie. The court, ignoring the defendant’s testimony that he did not anticipate any risk at all, sustained a conviction of “depraved heart” murder, concluding that the risk of death was 60% (three pulls of a five-chamber gun). As every law professor in the country points out in class, however, that is incorrect—the actual chance of the gun firing on the third pull was 33%, since there were only three chambers left (assuming no spinning of the chamber after each pull of the trigger), the chances were one in three that this chamber held the bullet. Despite the court’s bad math, however, if the defendant’s testimony is ignored, the fact that the chances of firing were less than 50% is irrelevant—indeed, as the hypothetical with Peter Pumpkin in the room of guns (page 66) shows, even a .0001 percent chance of death may indicate a “depraved heart” when there is “no reason” for generating the risk at all.[4] (On the other hand, if the defendant’s testimony is credited, he did not “consciously disregard” any risk that the gun would fire, unless one takes the position that anyone who “plays” with a gun, even what he believes to be an “empty” gun, is consciously disregarding a risk that he is wrong.)

These common law labels reflect a deeper, ethical assessment of the defendant’s conduct. No one’s heart (or mind) can be “depraved.” The latter word connotes a judgment that the defendant’s conduct (not his heart, or liver, or brain) is unacceptable on a moral level. While a doctor might be able to tell us whether a heart (or mind) is “malignant,” whether it is “depraved” is not a medical question. And how a heart could be “abandoned,” and still beat within the defendant’s body is unclear. The words are merely metaphors to convey what, in the twenty-first century, we might call (in an obviously legal phrase) a “scumbag.”

Presumed Malice

Prior to the end of the nineteenth century, criminal defendants were not allowed to testify in court (even if they wanted to), and current constitutional prohibitions preclude the prosecutor from compelling the defendant to testify. The common law therefore established several “presumptions” with regard to malice. Of these, two are of interest here. The first was that a person is “presumed” to intend the “natural and probable consequences of his act.” The other was that a killing committed with a deadly weapon (defined as a weapon calculated to or likely to produce death or great bodily injury) was presumed to have been committed with malice. Although some courts today continue to rely on these doctrines, the better view is that these are not “presumptions” at all but merely permissive inferences, which the jury may use or disregard at its discretion. See Bantum v. State, 85 A.2d 741 (Del. 1952). See also Chapter 15.

[4] The other prototypical malice aforethought murder is Banks v. State, 85 Tex. Crim. 165 (1919) (where the defendant fired a shotgun into a passing train, killing someone inside the train). Surely the risk of actual death from such an event is small—perhaps less than .0001. But the court had no trouble finding the defendant guilty not only of murder, but of capital murder.

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