Mills v. State

Murphy, C. J., delivered the opinion of the Court. On February 16, 1970, appellant, then sixteen years of age, took his father’s .22 caliber automatic pistol to a dance. While at the dance, he and four other boys— Gerald Hunter, Edward Overton, Clark Walker, and Gordon Reid — went into a small second floor bathroom to share a bottle of liquor. As the bottle was being passed between the boys, appellant removed the. gun from his pocket and while in the process of loading or unloading the weapon, it either slipped from his hand or was slapped out of it by Gerald Hunter when appellant pointed the weapon in Hunter’s direction.

The gun struck the floor and discharged; the bullet, following a steep upward path, struck and killed Gordon Reid. Appellant was subsequently convicted in a non-jury trial of involuntary manslaughter and sentenced to four years imprisonment. He contends on appeal that the evidence was insufficient to support his conviction. He maintains that his conduct was not the proximate cause of ¹⁹⁸ the victim’s death and that he was not criminally culpable for his actions.

According to Gerald Hunter, after the five boys assembled in the bathroom to drink from the bottle, appellant “all at once started to play with a gun while we were passing the bottle around. He started messing with it by taking it apart and putting it back together again. After he took it apart the first time, he put bullets into the clip. Then the bottle was passed around to Gordon and then Dutch then back to me, as I had the bottle to my mouth, Pat [appellant] had dropped the gun and it went off.” According to Edward Overton, appellant “was sitting on the sink [in the bathroom] and he was putting bullets into the gun.

He was having trouble getting them in so he asked Gerald [Hunter] to pull back the top part of the gun so he could put a bullet in it. After he did this he pointed the gun toward the wall where Gerald was standing. Clark Walker was just handing me the bottle to have a drink when I noticed that the gun was falling toward the floor. When it hit the floor the gun went off * * * 99 In a written statement given to the police after his arrest, appellant said that he had taken the gun to the dance to sell it; that when he went to the bathroom with the other boys to drink from the bottle, he took the gun from his pocket because the lining was torn and the gun was hanging out; that he intended to put the gun in another pocket when he noticed that “The clip part was hanging down and that the slide part was back so I took the clip out and noticed that a bullet was stuck up in the sliding part, where the bullets come out.

I took my finger and tried to pull the bullet out but it wouldn’t come out. I then put the clip back into the gun. I then asked Gerald Hunter to save me some of the bottle. The gun was pointing at Gerald because of the way I was holding it.

He told me not to play around with the gun and don’t point the gun at me. Gerald than smacked the gun out of my ¹⁹⁹ hand and the gun hit the floor or the wall * * *” (discharged and killed Reid). Appellant’s testimony at the trial was generally consistent with his statement. He testified that the bathroom was approximately five or eight feet wide; and that when he raised the gun in Hunter’s direction, Hunter hollered: “Man, don’t wave that gun around my face,” after which Hunter “pushed the gun and the gun hit the floor and it went off.” Appellant said that Hunter “hit” the middle of his hand and because he (appellant) was not holding the gun “too tight,” it fell to the floor.

Appellant acknowledged that he didn’t know how to unload the gun until, when just prior to arriving at the dance, he was shown how to do it by another boy. He testified that while in the bathroom with the other boys, he took the bullets out of the clip and put the empty clip back into the gun. Appellant admitted knowing that a bullet remained in the chamber of the gun. In convicting appellant of involuntary manslaughter, the court stated that appellant’s possession of the gun was illegal; that he had taken it, loaded, to a party; that although he didn’t know how to handle it, he took it out in a small room in the presence of other youths who were drinking; and that he was advised to stop handling the gun by one of the boys who “overtly tried to slap the gun out of his hand or to remove it from the way it was pointed.” The court believed the circumstances were such as created a dangerous situation which should have been appreciated by appellant and that he was criminally responsible for causing the death of Gordon Reid.

Involuntary manslaughter at common law has been generally defined as the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony, or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. Rolfes v. State, 10 Md. App. 204 ; State v. Gibson, 4 Md. App. 236 . To this basic definition some authorities add the qualification, as to the first ²⁰⁰ class of involuntary manslaughter, that the unlawful act be malum in s&, and not merely malum prohibitum, and as to the second and third classes of the offense, that the negligence be criminally culpable, i.e., that it be