## Facts

- James F. Atencio, James D. Marshall, Stewart E. Britch (deceased), and Britch’s brother spent the day drinking wine in a Boston rooming house room.
- Marshall left the room and returned with a revolver, manipulating it and removing one bullet; the evidence did not clearly establish ownership or who proposed Russian roulette.
- The jury could find that Marshall checked the revolver, saw it contained one cartridge, spun it, put it to his head, and pulled the trigger; it did not fire.
- Marshall handed the revolver to Atencio, who repeated the process without discharge.
- Atencio then handed the revolver to Britch, who spun the cylinder, put the gun to his head, and pulled the trigger; the round fired and killed him.
- Each defendant’s contact with the gun was limited to taking a turn and returning/passing it within the room.

## Issues

1. Whether evidence that defendants took turns in Russian roulette with the deceased was sufficient to convict them of involuntary manslaughter based on wanton or reckless conduct proximately causing the death.
2. Whether defendants’ brief possession of the revolver during the game constituted “carrying a firearm on [the] person” under Mass. G.L. c. 269, § 10.

## Decision

- The court affirmed both defendants’ convictions for involuntary manslaughter.
- The court held that participation in Russian roulette was wanton or reckless conduct and that defendants’ joint participation could be found to have contributed to and proximately caused the death.
- The court reversed both defendants’ convictions for illegally carrying a firearm.
- The court concluded that the evidence showed only momentary handling in a single location, insufficient to prove statutory “carrying,” and directed verdicts should have been allowed on those indictments.

## Legal Principles

- Involuntary manslaughter may rest on wanton or reckless conduct creating a high likelihood of substantial harm.
- Mutual participation and encouragement in a dangerous joint enterprise can support criminal liability when the enterprise foreseeably results in a participant’s death.
- A victim’s final self-directed act does not necessarily break causation when it is a foreseeable step within a jointly undertaken, continuous dangerous transaction.
- Criminal responsibility requires more than mere presence; affirmative participation that encourages continuation of the perilous activity may suffice.
- “Carrying” a firearm under Mass. G.L. c. 269, § 10 requires more than brief, transitory handling in place during an immediate act; momentary possession during a confined episode may be insufficient.

## Conclusion

The court held that defendants who actively joined and encouraged a Russian roulette sequence could be convicted of involuntary manslaughter because their wanton or reckless joint conduct was a proximate cause of the death, but reversed firearm-carrying convictions where the evidence showed only temporary handling of the revolver rather than statutory “carrying” on the person.


Commonwealth v. Atencio, 345 Mass. 627, 189 N.E.2d 223 (1963)